THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, June 15, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:32 a.m. [ET] to study Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Good morning and welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
Before we get started, I’d like to ask the senators to introduce themselves.
Senator Boisvenu: I am Senator Pierre-Hugues Boisvenu from Quebec.
[English]
Senator Batters: Senator Denise Batters, Saskatchewan.
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
[Translation]
Senator Forest: I am Éric Forest, and I represent the senatorial division of the Gulf, in Quebec.
Senator Clement: I am Bernadette Clement from Ontario.
[English]
Senator Klyne: Good morning. Marty Klyne, a senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dalphond: Good morning. I am Pierre Dalphond, and I represent the senatorial division of De Lorimier, in Quebec.
Senator Dupuis: I am Renée Dupuis, an independent senator, and I represent the senatorial division of The Laurentides, in Quebec.
[English]
Senator Busson: Welcome. My name is Bev Busson, and I’m a senator from British Columbia.
The Chair: I’m Brent Cotter, a senator from Saskatchewan and chair of the committee.
Senators, today we continue our study of Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.
We are joined today for this panel of our deliberations, from the National Association of Women and the Law, by Suzanne Zaccour, Director of Legal Affairs. She joins us by video conference. The floor is yours to do a presentation, followed by which there will be questions and discussion with you from the senators.
Suzanne Zaccour, Head of Feminist Law Reform, National Association of Women and the Law: I want to thank the committee for this invitation to testify on Bill S-12. NAWL, or the National Association of Women and the Law, is a national not-for-profit organization that has advocated for women’s rights in Canada since 1974.
NAWL has been working on the issue of publication bans in collaboration with various other feminist organizations, lawyers and victim survivors. You should have received our joint brief outlining some of the problems and proposed solutions to better empower victims and survivors who have been subjected to an unwanted publication ban and/or who want to share their story without having the threat of criminal liability. We understand that many victims and survivors want a publication ban to protect their identity but that some victims and survivors do not want this prohibition on sharing information about their identity. It was important to us to highlight what changes might be made to Bill S-12 to achieve the primary objective that we have identified.
The most important objective that that I would like to share with you is to ensure that victims are not criminalized for failing to comply with a publication ban on their own identity. That is especially important in circumstances where there are no other privacy interests at stake or if the failure to comply with the publication ban is not intended to make the information known in the community — for example, a victim or survivor who shares their information or story with a support group, therapist, or a group of friends — or a victim or survivor who shares their identity when they are the only victim or only person whose identity is protected by a publication ban.
For us, it is our understanding that the publication bans are meant to protect the victims, so they should not be used as a tool of revictimization. We have heard from victims and survivors, and I am sure that you have too, that there is often confusion on the publication ban. Some people do not know if one is in place or not. They can be hard to remove. We see it as very important that victims are not revictimized through that threat of criminal liability.
We also anticipate that the threat of prosecution could be used as a tool by abusers against victims. For example, an abuser who tells their victim, “If you tell our religious community or a group of friends that I sexually assaulted you, I will call the cops on you and you will get deported or detained.” It is important for us that the bill clarify that the victims should not be, themselves, subject to criminal liability.
Another very crucial objective is to clarify and simplify the process for revoking or varying a publication ban. Obviously, there are very high costs to revoking a publication ban if a victim or survivor needs to hire a lawyer to help them understand the process and to make an application. We believe that it should always be the prosecutor’s duty to apply to have the publication ban varied or revoked. We have to understand that this publication ban may have been asked for by the prosecutor without even consulting the victim. We have heard from victims that, after the trial is over, it can be very complicated to get a prosecutor to go and then have the order revoked.
We also believe that we should not need a hearing to determine if a publication ban should be revoked unless in very limited circumstances. For example, if there are several victims’ interests at stake, maybe one victim wants the publication ban and another does not want it. It may be hard to reconcile, for example, if the victims are related so one can guess one identity based on the other. But in general circumstances, unless we have these exceptional cases, the order should simply be revoked if the victim wants it revoked, and the process should be as simple and streamlined as possible.
Finally, it is essential to ensure that victims are adequately informed throughout the process. Once again, we have heard that publication bans are often or at least sometimes imposed without the victims’ knowledge or consent, and that can be an experience that is, of course, disempowering and problematic if the victim feels that they are being silenced. We do understand that sometimes it will be necessary to impose a publication ban before being able to communicate with the complainant for expediency reasons. Obviously, once the information is out, it is too late to act. Oftentimes, it might be necessary to impose that publication ban. But it is, of course, very stressful for a victim not to know whether there is a threat of criminal liability or not understand the parameters. It should be the case that the prosecutor and the court share a duty or a responsibility to adequately inform the victim at the earliest opportunity and ask them if they want a publication ban, and if a publication ban is in place, they should be informed and know what it means and that they can have it revoked.
I am also here this morning to share with the members of this committee that NAWL has, with other groups, been working closely with the government to work on improvements to the bill based on the language that we shared with the committee in our brief. We expect that the amendments that will be proposed will generally align with what we have recommended, even if the language is not exactly the same. I would like to invite senators to support these changes to make sure that the bill can really achieve its objectives to better protect and respect victims.
Thank you. I will be happy to answer the senators’ questions in English or in French.
The Chair: Thank you, Ms. Zaccour. If I am correct, you were referring to the brief that was submitted by NAWL and the Women’s Legal Education and Action Fund.
Ms. Zaccour: Yes, and other groups too. But it was submitted by LEAF, and it’s signed by NAWL; LEAF; the Ending Violence Association of Canada; the Canadian Association of Elizabeth Fry Societies; Legal Advocates Against Sexual Violence; Possibility Seeds; and then, as individuals, Robin Parker, Pamela Cross and Megan Stephens. This is the joint brief that I referred to.
The Chair: Thank you very much for that.
We will begin questioning initially with Senator Boisvenu, followed by Senator Busson. For your information, Senator Boisvenu is the deputy chair of the committee and the critic with respect to the bill, and Senator Busson is the sponsor of the bill in the Senate.
[Translation]
Senator Boisvenu: Welcome, Ms. Zaccour, and thank you for your opening statement.
I want to ask you about a part of the bill relating to the National Sex Offender Registry that seems rather weak to me and perhaps even worrisome for women.
The bill makes registration mandatory for child abusers sentenced to more than two years. We are all familiar with the statistics on domestic violence and sexual abuse crimes perpetrated against women. Those two types of crimes are up the most in Canada, if you don’t include firearms offences.
We know that superior courts, including the Court of Appeal and the Supreme Court, signalled to lower courts a number of years ago that they need to be tougher on sexual assault, domestic violence and other such crimes because they consider them to be endemic in Canada.
I’d like to hear your view on imposing the same requirement on abusers, rapists and men who batter women who commit these crimes and are sentenced to more than two years. Should they automatically be subject to registration, as will be the case for those who commit offences against children?
Ms. Zaccour: Thank you for your question. First off, I want to say that publication bans were the focus of my work and observations given the deadline for studying the bill, so that’s what I looked at more carefully and what our brief deals with.
For the National Association of Women and the Law, registration on the National Sex Offender Registry is a solution or approach in response to sexual offences that is based on the idea of what we call back alley rape or rape by an unknown assailant. That approach does not adequately address the problems that most women and girls who experience sexual violence face. In many cases, the sexual violence is at the hands of a partner, as the senator mentioned. When the violence is perpetrated by an intimate partner, it’s not clear that registration on the registry would really make women and victims safer.
As I understand it, that provision was developed to take into account the difference with violence against children. In the case of domestic or family violence, registration should not necessarily be used punitively. Rather, it’s a preventive measure. It hasn’t so much been shown to be an effective strategy for those more common cases of violence.
In our view, other approaches need to be found to better protect women, including those that address the limits or barriers women face when they want to leave an abusive partner.
[English]
Senator Busson: Thank you for being here, Ms. Zaccour.
You mentioned in your presentation — and it was very concise — that you have been working with the government to deal with proposed amendments to Bill S-12 as we move forward through this committee and through the legislative process. I appreciate that. The minister repeated the same thing, namely, that he had spoken and was intending to have officials continue to consult with stakeholders regarding the advancement of Bill S-12 and any amendments we might propose.
You had three suggestions of how you believe that Bill S-12 ought to be focused to become better legislation. Out of those three, would you recommend one above the other, or do you believe that these are all equally important?
Ms. Zaccour: They are all very important. These are three out of six in the brief. These are already the most important, but I would say that ensuring that victims are not criminalized is really at the top of my list. Obviously, I believe it is also very important that they are able to have the publication ban removed easily, but removing the threat of criminal liability would be the priority. I do hope we can get all of these issues addressed, but that would be the priority for us.
Senator Busson: In these kinds of circumstances, we all understand that these publication bans are designed to assist victims and they are victim-centred legislation, and the decriminalization of using one’s own name is certainly one of the things that is addressed in the bill.
The devil is in the details around these situations. Would you address with me how one might deal with a situation where there is a publication ban in place for another reason — perhaps a relative has asked for one, et cetera — and the other victim blatantly disregards that publication ban? Would you have any suggestions on how the system might deal with that?
Ms. Zaccour: Yes. Thank you for the question.
I think there would be exceptional circumstances where you might consider criminalization. It might still be a harsh punishment if it is only disclosing information about one’s own identity, but it would be possible to identify circumstances where criminalization is only possible, say, if there has actually been a breach of the privacy interests of another individual and not just a risk that it might happen.
I would also encourage the justice system participants to consider other means. Many victims may not be even aware that there is a publication ban, so explaining, having a warning and only considering criminalization in the worst circumstances or perhaps not criminalizing at all are a few suggestions. There are a lot of things in life that are not pleasant but do not necessarily reach to the level of having to be punished through criminal liability.
Considering that these orders were put in place to protect the victims, it is a priority for us to ensure that they are not revictimized through this tool.
Senator Busson: Thank you.
[Translation]
Senator Dalphond: Welcome, Ms. Zaccour. You’re becoming a committee regular, and I think that’s great. I’m not sure whether you’ve been following our meetings, particularly yesterday’s.
Ms. Zaccour: No, I haven’t. I’m currently on vacation.
Senator Dalphond: It’s not a criticism. Yesterday, the committee heard from a lawyer representing the Criminal Lawyers’ Association, and she answered this question. I asked her whether she was prepared to recognize that individuals who are convicted should have no legal standing in a proceeding to have a publication ban lifted.
Do you agree that the convicted individual, at the very least — and possibly even the accused — should not be able to participate in a proceeding related to a non-disclosure order or publication ban, or in any related proceeding to have the order or ban lifted?
Ms. Zaccour: I agree entirely, given that the interests of the accused are not a relevant argument when a publication ban is imposed. The purpose of the ban is really to protect the victim’s identity. Yes, we do agree that the accused — and this may be unusual from a trial standpoint because the accused is able to participate at every stage. However, in a proceeding to have the order varied, we certainly feel that only the interests of the victim or persons whose identity is being protected should be relevant and that the accused should not be allowed to participate.
Surviving victims have also told us that they fear retaliation if the accused is notified of, and participates in, the proceeding. People who have concerns that something the victim says may impact the accused’s life still have access to civil remedies, of course, but yes, we would agree with that recommendation.
Senator Dalphond: I’d like you to provide more detail, and I will put the question to department officials. When I suggest excluding the individual from participating, it doesn’t mean that it would be done ex parte in relation to the accused. I think the accused has a right to participate fully in the various stages of the process.
Ms. Zaccour: Indeed, it could possibly —
Senator Dalphond: Limit their participation, but I’m not talking about preventing them from attending or hearing what is being said. Their counsel should be able, if necessary, to ask the court’s permission to participate if there was something that might impact — other than the publication ban — the fairness of the trial, say.
Ms. Zaccour: It could make a difference depending on whether the trial had already taken place. For instance, if the trial was over, there would obviously be no impact on the trial. We’ve had those discussions, and there are circumstances in which the accused should at the very least be allowed to attend, but since their interests aren’t one of the factors taken into account, we recommend changing the interest of justice factors to centre on the interests of the victim. Then, the accused’s participation would simply not be relevant, but they could certainly be in the room.
I don’t think allowing the accused to be in the room and to be notified is avoidable. In our brief, we also recommend that the accused at least be notified of the outcome. Even though their interests should not be taken into account, their ability to speak about what happened is impacted. Therefore, the prosecutor should inform the accused about the outcome of the hearing.
Senator Dalphond: My next question pertains to when the trial is over. You said we should make sure that the Crown is responsible in connection with a proceeding to have a publication ban lifted. Is that the case in Quebec, if you’ve been following its new model? With the introduction of courts specialized in sexual violence and domestic violence, Quebec requires the Crown to provide victims with support and assistance.
Once the trial is over, do you think the Crown would still have a duty to deal with the matter and go through the necessary proceeding if an application were made?
Ms. Zaccour: That’s something I haven’t thought about. What we’ve heard is that the Crown sometimes refuses to follow through with the proceeding because the prosecutor feels it’s in the victim’s interest for the publication ban to stay in place. That’s somewhat of a paternalistic approach. Something else that can happen is that the Crown prosecutor feels it’s no longer their responsibility because the trial is over.
It should definitely be the same prosecutor assisting and informing the victim, and making themselves available for this. We feel it’s important that the victim also have the option of doing it themselves, if that’s what they want.
The victim may be deceased in some cases, so it could be a family member. Given the cost and complexity of the process for a layperson, access to justice would be better served if it were the same person who assisted the victim, whether in a specialized or other court.
Senator Dalphond: Thank you very much.
[English]
Senator Klyne: In your opinion, what measures of survivor-informed resources should be implemented to ensure that victims and witnesses are informed about their rights and the options available to them regarding publication bans? Further, from your perspective, how might requiring the courts to inform victims about their ability to seek a variation or revocation of a publication ban contribute to creating a fair and more effective justice system?
Ms. Zaccour: Thank you for the question.
Our opinion is that it is crucial that the victim be adequately informed. We need a solution that we come at from different angles. I think it should primarily be the prosecutor’s duty to inform the victim, seek consent or at least ask if they want a publication ban before requiring one. The ideal situation is the prosecutor asks the victim even before requiring a publication ban. If that’s not possible, then immediately once the order is in place, they should inform the victim. In our brief, we also raise the possibility of the court informing the victim. The victim is not always present in the courthouse, but if she is or if they are, then the judge could also make sure that the victim is aware that there is a publication ban in place or ask them if they want a publication ban.
For us, that would be important for access to justice and for a fair process, because even if the victim is told twice, it’s better to be told twice than not to be told at all because a criminal trial is obviously a very stressful situation, and the risk of criminal liability is also an added stress. Clear legislative responsibility on the court and the prosecutor to inform the victim would guard against some of the problems we have seen and have heard about, which are situations where victims were not even aware there was a publication ban until way after the trial was over.
Senator Klyne: From your perspective, are there any actions that can be taken to improve the overall awareness and understanding of publication bans and their implications for victims, witnesses and other relevant parties involved in criminal proceedings? Is it necessary to do any public awareness?
Ms. Zaccour: It would be important once the legislation is passed to clearly explain to the public and to train the justice system participants. It would be important for the prosecutor and other members of the justice system to inform every participant because the publication ban does not affect just the victim; it affects anyone who might discuss the victim’s case.
We also believe that, more generally, having access to free legal representation and advice for victims and survivors of sexual violence and domestic violence would go a long way towards solving some of these problems because victims could then receive personalized information and be a lot more secure in understanding the process and what is going on. That is something I think I’m going to repeat every time I’m here, which is also a very important piece of the puzzle.
Senator Klyne: Thank you.
[Translation]
Senator Dupuis: Thank you, Ms. Zaccour.
I have a question about your first recommendation, which is to ensure that victims are not criminalized for failing to comply with a publication ban. Your position is clear. Victims should not be criminalized.
My question is about the language in your proposed amendment. In the brief you submitted to the committee on behalf of your association and the other stakeholders, on page 5, you propose adding new section 4.1 so that subsection (1) does not apply. Is that correct? This is what you say in your brief:
(3) Subsection (1) does not apply in respect of a failure to comply with an order where:
a) The person’s identity is protected by the order with which they have failed to comply;
In other words, if I understand correctly, that is the language you chose to protect the victim from being criminalized if they fail to comply with the ban.
Ms. Zaccour: That’s exactly right.
Senator Dupuis: Here is my question: Shouldn’t it refer to the “victim’s identity” instead of the “person’s identity?” The reference to the “person’s identity” could apply to the assailant, so the accused. Shouldn’t the language be more specific?
The purpose of the bans is to protect victims, so the point is to ensure that victims are the ones who are not criminalized. Can you enlighten me as to why you opted to go with “person” as opposed to “victim”?
Ms. Zaccour: Absolutely. I’m going to answer that in two parts. First, we have two recommendations, and they are meant as examples of how the amendment could be worded. What is important, however, is that, if the person is the only one, theirs should be the only identity protected and they should never be criminalized. That’s what matters most. If no one else is impacted, they mustn’t be criminalized.
Second, even in cases where another person’s identity may be revealed, the individual should not be criminalized in circumstances where the person speaks to their friends, their support group and such. That is why we proposed amendments on two levels.
We also thought carefully about whether this should apply only to the victim or to any person. Publication bans can be imposed to protect the identity of a witness. According to what we heard and what we understand, that witness can be another victim in some cases. Sometimes, it can be another person who participated in the offence but was not accused.
The role of a witness can be somewhat complicated. In some cases, it could be a victim who was not recognized as one. In other cases, it could be a person who was involved in perpetrating the sexual violence but was not accused. It can be difficult to differentiate because the situations are very different.
We chose to use “person” to capture situations where no other identity is revealed. Say a witness participated in the crime. That witness can’t reveal the victim’s identity if their identity is also protected. That’s why we chose that language.
Senator Dupuis: My question was more about the accused. In principle, it is clearly meant to protect the victim’s identity. At the same time, though, it protects the identity of the person who is the accused.
I’m not really concerned about other witnesses or other victims being involved. What I’m concerned about is that the accused is also being protected. If the accused decided to seek revenge or use methods to make information known about the victim or victims, the accused would have immunity. They would be protected by this amendment.
Ms. Zaccour: I understand your question. Under section 486.4 of the Criminal Code, a publication ban can be imposed to protect the identity of the victim or a witness. A publication ban would not be imposed to protect the identity of the accused.
If a publication ban was imposed to protect the victim’s identity, the victim’s identity could not be revealed because the requirement in paragraph (a) would not apply. The accused’s identity is not the identity being protected by the ban.
If I understand what you’re asking, I can assure you that this would not preclude the accused from being criminalized if they were to reveal the victim’s identity.
[English]
Senator Batters: Thank you for being before our committee today, Ms. Zaccour.
I think I might have clarity on this, but in your opening remarks, you stated that you were working with the government on amendments to Bill S-12. I was going to ask if you meant that you worked with the government on the actual bill, but when Senator Busson was asking you questions — she is the Senate sponsor of Bill S-12 — I think she provided clarity when she seemed to indicate that the federal government is currently working on amendments. I just want to confirm that. Is it correct that you’re working on amendments right now to this bill with the government?
Ms. Zaccour: That is correct. We have had conversations with the government on what should be changed in the bill as it is now and not conversations before the bill was introduced. That’s correct.
Senator Batters: Okay. Did they have conversations with you prior to introducing the bill, or is this something that just happened once the bill was already introduced?
Ms. Zaccour: We had limited discussions before the bill was introduced, but we were not able to provide adequate feedback because we hadn’t seen the bill. I believe this is why the bill now requires some amending to fulfill its goals.
Senator Batters: Absolutely, and thank you for the very detailed brief including the proposed amendments.
I just don’t really understand we set a clause-by-clause meeting before the Justice Minister actually provides us with amendments. That’s probably another reason why it’s not an ideal scenario when we have the federal government initiating a government bill in the Senate. That’s kind of a strange situation.
I haven’t had a detailed chance to look at this brief that you provided, but I’ve been concerned when I’ve been questioning other witnesses about the possibility of the word “publication” with a publication ban in that it could potentially apply to emails or social media posts from a victim, or rather, as you refer to them, a survivor of sexual violence. Is that something you’re concerned about? Is that part of the reason you want to have one of the amendments that you’re proposing in your brief?
Ms. Zaccour: Absolutely, especially with the proposal to add “or otherwise made available” in many of the articles in the bill. Even though a private email should not be interpreted as publication or dissemination, there is always the risk that a victim has to go to court for a discussion on what is a publication and what is not a publication. That’s why we have recommended the removal of “or otherwise made available,” which seems to make it very broad. It is to make sure that any disclosure that is not meant to make the information known to the public should never be criminalized if it’s made by the person who is subject to the order.
There are two concerns. One is actual criminalization. Will we criminalize someone for sending an email? The other concern is the fear of criminalization. That is equally serious if the victim is not able to get support, because she is not sure and she doesn’t have access to legal representation. So it’s important not only that the victims not be criminalized but that it be very clear that this behaviour will not be criminalized.
Senator Batters: Absolutely. That’s something we heard from the Ombudsman for Victims of Crime when he testified yesterday at our committee. He said that he is hearing a lot from victims about these publication bans, either that there have been situations that have transpired about that or that people are fearful about it.
Can you tell us more about this “otherwise made available” language? Yet again, it seems like we have a government bill that has some very imprecise language — language that would not seem to be the norm in a piece of legislation.
Ms. Zaccour: The “otherwise made available” is not exactly clear. We don’t know what is meant to be captured. For me, it’s clear that there was a sense that something was missed with the current definition, but our position is that it’s probably too vague, potentially raising constitutional problems. Again, as we just discussed, it gives rise to the fear that perhaps just seeking accommodation at work, talking to a therapist, talking to a support group or to friends might raise the question of criminalization. So we have recommended simply striking it out. We would be open to knowing what these situations are that are not currently covered that would need to be covered. If there are such situations, then use more precise language rather than “otherwise made available” — that catchall [Technical difficulties].
Senator Batters: Those are excellent points. Thanks very much for all your work.
Ms. Zaccour: Thank you.
[Translation]
Senator Forest: Thank you, Ms. Zaccour, for your input.
If I’m not mistaken, Bill S-12, as it currently stands, does not require that the victim be consulted before a publication ban is imposed. The judge is merely required to ask the Crown whether they had an opportunity to consult the victim or took reasonable steps to do so.
Do you have any recommendations that, from your standpoint, would strengthen that aspect of the bill? It seems to me a rather flimsy requirement as far as the victim is concerned.
Ms. Zaccour: Thank you for your question.
Indeed, we don’t think the bill, as it currently stands, goes far enough to ensure that the victim is consulted. One option would be to stipulate that a publication ban cannot be imposed without the victim’s consent. That wasn’t something we recommended because it may be extremely important in some cases to get a publication ban in place quickly, before the prosecutor has had a chance to speak with the victim.
Instead, we recommend that there be a duty to inform, not just that the judge ask whether reasonable steps were taken to inform the victim. There would be a duty to inform the victim. If the victim does not want the publication ban, the measure is still problematic.
Another recommendation we have for the committee, to address cases where the victim doesn’t want a ban that was imposed hastily, is to require the prosecutor to apply to have the ban revoked at the victim’s request, so that the victim doesn’t have to hire their own lawyer.
We recommend that the judge also have a duty to inform the victim and ask whether they want the publication ban. That would serve as the belt and suspenders, if you will, in the event that the prosecutor fails in their duty to inform the victim.
Senator Forest: Is that recommendation in your brief? I haven’t had a chance to read it, since I’m filling in for someone else. I’m just passing through, so is that point clear in your brief?
Ms. Zaccour: Yes, absolutely. It’s covered in recommendation 5 in our brief, which is about ensuring that victims are informed. We identify the places in the bill where the duty of the prosecutor and the duty of the judge should be laid out.
Senator Forest: Thank you very much.
[English]
Senator Pate: Thank you very much for your work on this, as well as the work of the other organizations.
Following up on some of the questions of colleagues, could you be more precise about which of your recommendations the government has agreed to incorporate as amendments so we can know that and perhaps ensure it’s on the record when we move to clause-by-clause consideration?
In addition to the obligation to inform that you talk about with the Crown, you also talk about the need for additional support services because of the role of the Crown as not representing victims. Have you any thoughts about whether it’s appropriate to put that in the bill or how that mechanism might be enforced in terms of providing resources to organizations like yours and others that are part of this to ensure that victims have the supports?
Ms. Zaccour: Thank you for the questions. I’ll answer them in reverse order. Hopefully, I’ll still remember the first one when I finish answering the second.
Yes, we believe it’s fundamental to properly fund the women’s sector and women’s organizations to provide support to victims, access to legal representation and Legal Aid, even though sometimes we get into problems with levels of government and who can provide what solution. That’s something we will say every time we come to testify on any bill, because most victims do not read the text of the law, and even if they do, they might not understand the nuances. We believe that access to free legal representation and not just advice is really fundamental.
On the consultation, my understanding is that any amendments that the government might propose are obviously confidential until they are moved, but from the conversations that we had with the government, I can say that we are reasonably confident that all of the issues we raised in our brief and that are important to us are going to be met and addressed. That’s from what we have been told in terms of what is coming in the government amendments. For us, that’s the current information we have. We have had very good communication with the government on this bill, and the information is that every single concern that we have raised is going to be addressed. That is obviously an outcome that we don’t often see, so we’re happy about that. That is why we’ll encourage the senators to vote for these amendments, if those are what is coming, which is my understanding.
Senator Pate: Okay. I might be the only one troubled — but I think I’m not — by the fact that we are, as Senator Batters said, moving to clause by clause when there could potentially be improvements that would be useful to know about. Sorry, I put you on the spot. I was hoping to get a little more precision, but thank you. That’s very helpful.
Ms. Zaccour: Once the amendments are moved and become public record, I will undertake to be in touch with any senator who would like a quick reaction on whether we think there could be any improvement and whether that satisfies or concerns you. I’m always following the clause-by-clause consideration closely in any case. If that’s useful, I believe all members of the committee have access to my information. We can ensure that everything proceeds well, despite the somewhat rushed nature of this process.
Senator Pate: Procedurally, I’m not sure how we will do that. Maybe I’ll have a discussion with the sponsor offline.
We know of some of the public examples, the Kitchener example and others, of situations where women have been criminalized. I know of a number of racialized women in particular, women who have previously been criminalized themselves and who have been jailed as a result of violating publication bans. I’m curious how you see providing particular services for those who are especially marginalized in terms of economic, racial and circumstantial issues, particularly prior involvement with police, and how you see those being addressed.
Ms. Zaccour: Thank you for the question.
One way to address criminalization would be to say that the publication ban is really easy to revoke and to have varied. Then it’s not going to be a problem. Obviously, this is not the position that we’re bringing forward because of the issue you raise. Some marginalized groups, even if the process is “simple,” might not have access to the information, might not have a good relationship with the prosecutor and, for whatever reason, the publication ban is not lifted although everything is done to simplify the process. That is not the current state of the bill, but we expect it will be with the amendments.
Some kind of exemption of criminal liability or directions that the victim should not be prosecuted is essential because if all else fails, if the publication ban is imposed without proper consent, if she’s not adequately informed and if she is not able to have it revoked for whatever reason, even if every single thing that this bill will aim to fix fails, then at least she will not be criminalized. Criminal liability is a harsh punishment for something like that. That’s why we’re also proposing this exemption from criminal liability or some other variation that would make sure that these victims are not criminalized.
Senator Pate: Have you thought about any kind of —
The Chair: Senator Pate, we might have to add you to the second round. You’re well past your time.
Senator Clement: It’s astounding to me how different things work, depending on the committee, in terms of how we make amendments and how we proceed. I’m still learning.
I want to thank the witness for the brief and for working collaboratively with those other groups on the brief. That’s greatly appreciated. I also appreciate your answers to the questions from Senators Busson, Pate and Batters around your groups working with the government on amendments. That is good to know and understand. I also appreciate that you prioritized not criminalizing victims. Having victims be able to say their own name, as Senator Busson says, is good.
I wanted to highlight recommendation 4 in your brief from my perspective as also being of concern. Senator Pate raised the issue of access to justice. Here, in Ontario, we have a well‑funded legal aid system. I would say, however, that we could do more. I have represented victims of crime when we had a more robust criminal injuries compensation system here in Ontario. I know that victims need lawyers to navigate through every aspect of the system. It’s not a website and a check box. It doesn’t do it when you have victims that are going through trauma. I want you to lean into describing recommendation 4, a simplified process. The other thing about resources for victims is that it depends on the province that you’re in and how well funded your legal aid system is as well. Again, it’s a bit of a patchwork for victims, depending on where they live. Could you lean into recommendation 4? I find that one important as well.
Ms. Zaccour: Thank you for the opportunity to speak more about this recommendation. I completely agree with what you just said. However simple we try to make any process, it’s still often going to require some kind of legal representation. Unfortunately, many women don’t have access and have to do it themselves. This involves a lot of stress, a lot of expenses and a lot of time.
An important thing for us which is absolutely crucial — and I don’t quite remember under which recommendation you’ll find it — is that the prosecutor must take this role with regard to the victim. If the victim doesn’t want the publication ban, that is the duty of the prosecutor. That’s not to say that she cannot do it herself. She should have the opportunity to do so. Some victims are represented for various reasons, so it should be possible, but the prosecutor should not be able to say, “No. I do not believe that. It’s not my job. The ban shouldn’t be revoked.”
That said, first, the criteria on the wishes of the victim need to be very clear, unless it’s more than one victim or it’s not possible to accommodate all victims. That’s a more complicated situation, but the general case should be not whether it’s in the interest of justice, which is currently in the bill, but simply what does the victim want?
The second important issue is if it’s that simple, if there is one criterion, we don’t need a formal hearing for that. It should be extremely streamlined. Again, to go back to what Senator Pate said about marginalized victims, just being able to go to court is not always possible for someone who works or who doesn’t have access to child care, et cetera. Make it that a hearing is not required unless there is a complicated situation, or there is more than one victim and it’s not possible to accommodate all of them, in which case the consideration should be: How do we protect all victims? We’re really advising against any formulation of the interest of justice, which is vague and might raise the question that we discussed previously, namely, does that include the accused or not?
We also include in that recommendation to make it clear that, while the accused should not have standing in that hearing and the court should always have jurisdiction, if the trial is complete, then make sure that there is a clear door, or corridor, to get to the revocation. If I had to rank them — which I don’t like; I want to have all of them — that would be a close second in terms of the recommendation to make sure it’s clear and as easy as possible. The process is hard enough as it is.
Senator Clement: Thank you.
The Chair: Thank you. Moving to second round, it’s nearly 12:30. I’m going to suggest, with your indulgence, that we go another six minutes or so. Perhaps two minutes each. We have three questioners for the second round.
[Translation]
Senator Dupuis: I’d like to hear your opinion on the following issue. You talked about a legal representation system; I understand that very well. My question is a little broader. In the criminal justice procedure system, shouldn’t there be a system of legal support, of course, but also of psychological and medical support?
We can see that this criminal procedure imposes additional suffering on the victim of crime. Shouldn’t the criminal justice process itself provide for victims to have access, if they choose, to a support procedure, be it legal, medical, psychological or other?
Ms. Zaccour: Yes, for many victims, it’s essential to have access to resources. Ideally, legal representation and psychosocial support would be provided; I have to say that many women’s shelters already provide that service.
I don’t think I’m going to surprise anyone by saying that what’s often lacking, in the community of women’s groups and feminist organizations, is funding to be able to meet all the needs. The system is still a hostile one. It’s important to have training to ensure that the system is more trauma-informed; but yes, absolutely. Because we almost demand, as a society, that victims come forward, but afterwards, the system is often very hostile to them, and studies show this, even more so if it’s a case of domestic violence or domestic sexual violence.
So yes, absolutely, that’s certainly part of what should be done to improve the situation.
[English]
Senator Pate: I’m curious whether you looked at the possibility of coupling the mandatory requirement to notify victims with a remedy. I had some discussions with people in Australia who have worked on this. Indigenous women there and here who have been criminalized sometimes then get criminalized again because they have dealt with the authorities before, and as they are being arrested, they may do something like pull away or actually assault, so they end up with additional charges besides the breach and end up criminalized in other ways. I’m curious whether you have looked at any kind of a remediation clause where that was inappropriate because it violated the prohibition and then results in behaviour that is systemically part of a response to not trusting the system that you have just alluded to in your response to Senator Dupuis.
Ms. Zaccour: Thank you for the question.
I am sorry to say that I have not considered that and thought about solutions. It is a great question to ask, and it’s certainly something that should be considered. We have also heard anecdotally from people who have been criminalized or lawyers who have been litigating these cases, so I don’t have a full picture of the situation. If it’s possible to get that in this situation and if it’s possible to pardon those cases or to take some kind of remedial action, we would obviously support that.
Senator Busson: Briefly, I was wondering if I could get your and your organization’s perspective on the other part of a victim’s right to information around the obligation created with Bill S-12 for Corrections Canada to keep the victim advised as to the status of the offender. Could you comment on that, please?
Ms. Zaccour: Unfortunately, I haven’t had the time to look at all the parts of the bill as closely. We focused our attention on the publication ban.
We have had conversations with other organizations on this question, and the consensus was that, generally, more information is better, in most cases, at least. We also discussed the importance of having a clear point person who provides information and having the possibility to manage how and when the information is going to be communicated because it might be distressing. I could perhaps also say that the way this is implemented and the infrastructure also matters, in addition to the simple right to information, to make sure that the system is trauma-informed and that it’s not just pulling the victim back into being revictimized or distressed.
Senator Busson: Thank you very much.
The Chair: I want to extend my thanks, Ms. Zaccour, both for the work that you have done with your colleague organizations to provide assistance to the committee and also for the frankness and insights that you have provided in your testimony and the answers you provided to our questions. It’s very much appreciated, as you know, and we look forward to seeing you again before too long.
Colleagues, for our second panel today, we have invited officials back to answer any technical questions that may have arisen as a result of testimony that we have heard since they joined us previously.
Let me welcome back, from the Department of Justice Canada, Matthew Taylor, General Counsel and Director, Criminal Law Policy Section; Joanna Wells, Acting Senior Counsel, Criminal Law Policy Section; and Isabelle Desharnais, Counsel, Criminal Law Policy Section. We are not anticipating opening remarks from you, Mr. Taylor and your colleagues, and we would, as a result, dive right into questions and discussion with you.
As you know, Senator Boisvenu is the critic of the bill and Senator Busson the sponsor. We will begin with Senator Boisvenu.
[Translation]
Senator Boisvenu: I’ll let my colleagues speak, as I’ll no doubt be making some amendments. I’ll speak afterwards.
[English]
Senator Busson: Thank you for coming back to clarify some issues that we have been dealing with.
We have heard from a number of witnesses throughout this hearing around the right of the accused to standing in any kind of an issue around whether a publication ban is being placed in the first place or whether or not one is being revoked. Could we get your comments on any contemplation or if this had been a conversation during the initial drafting of Bill S-12?
Matthew Taylor, General Counsel and Director, Criminal Law Policy Section, Department of Justice Canada: I can reiterate, perhaps, something I said last week, which is that, under the common law, there is case law that confirms that an accused does not have standing in respect of publication ban applications or in respect of applications to vary or revoke.
As to what we discussed with the minister and the government when the bill was developed, obviously, I cannot disclose that, but, certainly, we are aware that that is something that has been raised before your committee and is something of concern. To the extent that the committee is looking at that issue, the information that we have provided — which suggests, in fact, that there is no standing for accused persons — might inform your deliberations and possible amendments to the legislation.
Senator Busson: Thank you.
Senator Dalphond: When you refer to “common law,” you mean that there are some cases that have decided that — and some recently — but not in courts of appeal or the Supreme Court? It would be trial courts and, most likely, provincial court judges?
Mr. Taylor: Yes. I don’t have a detailed list, but I believe there are at least three decisions in Ontario at the superior court or provincial court level.
I think, as you know, Senator Dalphond, publication ban cases do not often find their way to courts of appeal, which might be an explanation as to why, but I can’t say with certainty, unless my colleague is aware, whether there has been an appellate decision on that point.
Senator Dalphond: Thank you for that precision. That is what I wanted to know.
These three cases have not excluded the accused from participating in the debate, I suppose, if the trial was not completed or if it was pending a trial of an accused person and not something happening after there was a conviction registered and final?
Mr. Taylor: I don’t have the specifics as to whether they were applications that were made after a finding of guilt or otherwise was made. As senators know, courts are presumptively open, so to the extent that a hearing during the trial takes place, it would be my sense that an accused would be entitled to be present during that hearing but, as I have said, would not have standing in respect of submissions.
Senator Dalphond: Do you think it would be a good idea that we maybe take the opportunity to codify that in the code?
Mr. Taylor: The issue of standing?
Senator Dalphond: Yes.
Mr. Taylor: That is, obviously, an issue for all of you, as parliamentarians, to assess. To the extent that we can be helpful, it is just to point you to the jurisprudence that recognizes this point around standing. Clarity is always helpful, I would say, as a general matter.
Senator Dalphond: Thank you.
The next issue is about the fact that maybe we should think of a carve out for potential prosecutions in case of a violation or a breach of a publication ban when the person is the victim or the person that was aimed to be protected. Is that an option that the department has considered?
Mr. Taylor: It is certainly something that we are aware o has been called for, and not just recently within the context of Bill S-12 but historically as well.
When we appeared last week, we tried to convey the objective behind the bill around the process for revoking a publication ban, and clarifying that process was to provide that mechanism to address that specific concern. When we recognize that the policy objective of a publication ban vis-à-vis a victim is to protect their privacy interests, the fact that the victim no longer wishes to have that protection is a strong and compelling reason for why the publication ban should be lifted. I would expect that that would be a process that would be followed in the normal course of things.
I think the proposal to go further around providing some sort of safeguard against prosecution seeks to provide a bit more assurance to victims that they wouldn’t be prosecuted and, perhaps, reflects the principle that it may not be in the public interest to do so, and so I can understand why there is an interest in that issue.
Another consideration, perhaps, on the other side of the equation that I am sure you have all considered would be the importance of respecting an order of a court. If a court has imposed a publication ban and an individual engages in conduct that is in breach of that court order, it raises those questions as well.
Senator Dalphond: That is why I am asking the question, because we know that even invalid injunctions have to be complied with until they are reversed. The same is true of a publication ban. It has to be complied with.
In order to avoid this debate and to preserve the integrity of a publication ban, don’t you think it would be an interesting option to have a carve out that says a crime is not committed when it is the victim speaking about herself? I say “herself” because most of the time it is a woman. In such a case, the ban would not be applicable to that situation, and therefore there is no breach of the ban by doing that.
Mr. Taylor: Yes. The idea that you are speaking to could be achieved in a number of different ways. You could, for instance, carve out specified conduct such that where that conduct is present, it doesn’t run afoul of the prohibition in the first place. It is not an offence, effectively.
Senator Dalphond: That’s it.
Mr. Taylor: That is certainly one approach. Another approach — and I only caught part of the testimony from the previous panel — is enacting a provision that would limit prosecutorial discretion such that, in certain circumstances, although the conduct at issue is on its face captured by the scope of the publication ban, the provision would provide that, nevertheless, a prosecution should not or must not be pursued in these circumstances.
Senator Dalphond: Is there any provision in the Criminal Code that provides that we interfere with the discretion of the prosecution?
Mr. Taylor: One example that I could point you to — there may well be others, and maybe the way I characterized it in terms of interfering with prosecutorial discretion was wrong — is an immunity provision that was enacted in response to the Supreme Court’s decisions concerning what were then called prostitution offences in relation to the sex trade, where the selling of sexual services is illegal but the seller of the sexual services is immunized from prosecution because the policy intent of the legislative framework is to treat that transaction as exploitive and that the seller should be protected from prosecution. That would be one example that I could point you to.
Senator Batters: We have now heard from witnesses indicating that the government is working with the witness we just heard from on fairly major amendments to this bill. What is the purpose of you, as departmental officials, being here today? Wouldn’t it be more appropriate to come back when these types of amendments are completed, and then we can have a look at those and ask questions about that?
Mr. Taylor: We were invited to appear here today to answer technical questions on the bill. We are always happy to return to answer further questions or to support you on any changes that might be proposed to the bill in the future. We are happy to do that.
Senator Batters: Is it correct that the government is working with witnesses on significant amendments to this bill?
Mr. Taylor: We are aware that our minister’s office has had many conversations with many organizations with respect to this bill, both prior to its introduction and since its introduction. We are not part of those conversations. As public servants, our role is to support our minister and the minister’s office in respect of the bill and the legislation and possible amendments.
Senator Batters: But it would be people from the Department of Justice that would be involved in drafting those amendments; correct?
Mr. Taylor: Absolutely. If we were instructed by the minister’s office to prepare amendments in respect of this bill or any bill, we would be involved in that.
Senator Batters: I’m trying to read between the lines here. Are you saying that you have not received any instructions that the minister will be proposing amendments, or you have and you’re waiting for that?
Mr. Taylor: We are working to support the minister to examine possible amendments to the legislation. As to whether those amendments are introduced or proposed, I can’t speak to that, but when asked specific questions on how the bill could be amended, we are providing advice to support the minister on that.
Senator Batters: Is one of those amendments dealing with shrinking that “otherwise made available” language so that things like emails and social media posts from victims would not be included in that?
Mr. Taylor: I don’t want to be seen as avoiding answering your question, Senator Batters, but I’m mindful of a couple of things: first, your privilege as parliamentarians and privilege around motions that might be introduced; and second, the legal advice that we might provide to the minister.
What I will say, and I hope this helps in some respects, is we are well aware of the concerns that have been expressed around the language of “otherwise made available,” and we are supporting our minister to examine ways to address those concerns.
Senator Batters: I don’t see how speaking about the types of things that the minister is considering amending infringes on any privilege at this stage.
Mr. Taylor: In respect of the advice that we provide to the minister, that is advice that we provide as lawyers and as public servants, and it is protected under both our obligations as public servants and as lawyers under our professional responsibilities for the law society.
The language of “otherwise made available,” as I think I tried to describe last week, was included to respond to a Court of Appeal decision in Alberta. It responded to calls for legislative reform by the Uniform Law Conference of Canada to close a gap that had been identified where a victim’s information had been published by a media organization prior to a publication ban being imposed, and then a case involving whether or not the publication ban would require the media organization to remove that information, the concern being that its continued publication has a negative impact on the victim. The Alberta Court of Appeal concluded that the current scope of the provision did not address that conduct and that it would be for Parliament to act if it wanted to address that conduct. That is the intent behind the proposal to add “otherwise made available.”
Senator Batters: Okay.
Senator Pate: I won’t ask the question that I was going to ask, but whenever we are able to have that information, it would be extremely helpful.
The new amendments that the presiding judge is asked to consider when lifting a National Sex Offender Registry designation under the National Sex Offender Registry includes personal criminal history. Was the consideration of 718(2)(e) included in the discussions about that?
When the minister was here, I asked him about this. While this is a sentencing provision — and he indicated that registration with the National Sex Offender Registry is not a sentencing provision as the court in Ipeelee indicated — extending 718(2)(e) to other registry programs, such as the High Risk Offender Program, is relevant.
I am curious in what ways you see 718(2)(e) being better included in the drafting of these amendments to ensure that racialized and Indigenous communities are not further disproportionally impacted by a system that is historically and unfairly perpetuating racist attitudes and system bias against them.
Joanna Wells, Acting Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: I will take that question. Thank you, Mr. Chair.
If I understand your question correctly, you are pointing to the list of factors that a court would consider on the rebuttable presumption.
One thing that may not have been entirely clear at our last appearance is that those factors are specifically listed as risk factors. They’re slightly different from a sentencing factor. They’re meant to take into account different considerations. The bill does not propose to specifically reference the Gladue principle in those factors. There was a concern that putting it in the risk factors would equate indigeneity with risk, which was not part of the objective of the bill.
There is discretion in that list of factors for a court to consider other things, should they be relevant to the consideration of the question before them as to whether or not registration is appropriate in that circumstance. We know from Ipeelee that a court is always free to consider the impact on Indigenous offenders, and ought to in all cases, but it’s not specifically identified because of the risk that was observed of equating those two issues together.
[Translation]
Senator Dupuis: I’d like to thank the witnesses for appearing before us again. My question doesn’t require an immediate answer, but it seems to me that, in the context of our committee’s procedure, it would be easier for members if they had the information in terms of what is expected of witnesses and why they are being invited or reinvited. It would save us having to ask witnesses to justify why they’re here. So thank you for coming back.
I want to say that many of the members of this committee — I don’t want to speak for the others, but personally, I appreciate every discussion we have with you. You help us better understand bills and technical issues, and it’s important that you be here.
What kind of thinking is happening within the Department of Justice in your units about the very structure of the process from the victim’s point of view, in relation to publication orders and in relation to the fact that the victim is at the mercy of even the most benevolent conduct of a Crown prosecutor?
The Crown prosecutor has an accused before them and they need to get a conviction. So the victim becomes an instrument, even with the best will in the world. However, what we’re hearing and what you’re saying today is that this is no longer acceptable.
I like your reference to the public interest issue, as there is a public interest issue. We have a system of criminal procedure that disadvantages the victims who are needed to obtain convictions. Since most of these victims are women, there’s an element of systemic discrimination that is being maintained in the system if no attempt is being made to change it.
Do you have any discussions or thoughts on how legal, psychological and medical support could at least be provided for victims in this process, if necessary?
Isabelle Desharnais, Counsel, Department of Justice Canada: Thank you for your comments. It’s true that for a long time the victim was considered a mere witness in criminal proceedings, and over time we’ve noticed a trend, especially since the Canadian Victims Bill of Rights. The bill gives victims their rightful place in the Canadian justice system.
Discussions are still underway in working groups at the Department of Justice Canada and other justice departments across the country. There’s a lot of sharing of information about how it’s done elsewhere in the country to understand, know and identify issues that could help better identify situations that could be resolved.
Now, concerning your question, the Department of Justice makes a lot of investments, particularly in terms of multi-year agreements, so that money is sent to the provinces and territories that are responsible for administering justice; they’re mainly the ones responsible for providing services to victims.
So money was allocated in the 2021 budget. There was $600 million in funding from which the Department of Justice Canada was allocated $48.75 million over five years to ensure access to free legal advice and representation for survivors of sexual assault and intimate partner violence. That’s just one example, but there are things the department is doing.
Senator Dupuis: I have a follow-up question. I’m holding back from telling you that we don’t want more money invested in services that aren’t provided in the provinces.
So, we imagine there are discussions about cash transfers and also procedural and structural issues. Have you had a chance to look at other systems, in other countries, where victims have party status and which can inform our thinking on these issues?
Ms. Desharnais: I can assure you that the work that is done within the Department of Justice is ongoing and that officials will always look at what is happening elsewhere in terms of promising practices, and even practices that are going to be adopted in one province so that information sharing is done throughout the country.
However, indeed, in the analysis and general observation of victim support services or any other legislative provision, there is the exercise of going to see how it’s done elsewhere, in other countries.
Senator Dupuis: Could we ask our witnesses to provide us with information that may be of interest to us about these issues, if they can share it?
Ms. Desharnais: Yes.
Senator Dupuis: Thank you.
[English]
The Chair: Could I intervene before Senator Simons asks the next set of questions?
I’d like to clarify that the steering committee, on behalf of the whole committee, invited the officials back to field technical questions. To your credit, you have focused mainly on that. There was a slight shift in the perspective regarding this bill as a result of some earlier testimony that we have heard. That wasn’t the basis upon which we invited the witnesses. Mr. Taylor has done his best to describe the best he can do for us here. I thought it was fair for me to take some accountability for their presence here, which we all appreciate, and let me call it the more limited context in which we thought we would be having those discussions before developments earlier today.
Senator Simons: I am mindful of the chair’s comments. I will try to keep this as technical as I may.
When you were before us last week, Mr. Taylor, both you and the minister made reference to a Court of Appeal case in Alberta that you said had broadened the definition of transmission. That’s not actually what the case you referred to just now did. I’m quite familiar with this case because it involved an Edmonton murder trial.
So that my colleagues in the room understand what happened in that case, a 14-year-old girl was murdered. At the time of her death, her photograph and her name were widely reported. When charges were eventually laid against the man accused of killing her, the court imposed a publication ban on the child’s name. Then the Attorney General of Alberta charged the CBC with criminal contempt because the CBC did not go back through its archives and remove her name from previously published stories. The CBC, represented by Reynolds Mirth of Edmonton, fought a case to the Alberta Court of Appeal. An injunction was sought by the Crown at the Supreme Court, which turned them down. The Court of Appeal clearly said that it was unreasonable to expect media organizations to go back through their archives and ex post facto censor them, and that what has been part of the historical record was part of the historical record. That’s what the case did.
What you’re telling us now is not that you’re trying to narrow the definition of transmission but that you put in the phrase “otherwise made available” to respond, because you don’t like the way the Alberta Court of Appeal decided this case, which was a landmark case in protecting press freedom. That would be a more correct understanding of what “otherwise made available” is doing in the act, right?
Mr. Taylor: Right. To the extent that we weren’t clear on that, I appreciate your comments, and I appreciate the opportunity to respond to your comments.
Yes, the decision at issue at both the trial and the Court of Appeal levels went through considerable effort to trace back the meaning of the terms in the publication ban provision and what they capture and what they don’t capture. The court provided their understanding of the meaning of “publish,” which is “to make public and disseminate broadly,” and they talked about transmission. You’re right that they made clear that within their interpretation of those provisions, it did not capture the going back in time and removing.
As I said, that decision led to calls for law reform, not just by the federal government but by all jurisdictions through the Uniform Law Conference of Canada, to address that gap. That’s what the bill attempts to do: address the potential for continued harm to victims whose name continues to exist on websites or archives that cannot be removed currently or is not captured by the scope of the publication ban.
Senator Simons: Last week when you were here, you said to me and Senators Boisvenu and Batters that the problem was that “transmission” was too broad and could include private emails. That’s not true. “Transmission” has been clearly defined. It doesn’t include private correspondence.
Mr. Taylor: Perhaps there were two different issues that we were discussing. I think the concern —
Senator Simons: I don’t think so.
Mr. Taylor: — around transmission, as I understand it — vis‑à-vis victims — is that transmission as a concept would capture the kind of sharing of information that you just described, and that is concerning.
Senator Simons: Is there any jurisprudence that says that “transmission” includes private, personal correspondence?
Mr. Taylor: I think as I said last week, there is limited jurisprudence, and what we do know — so from that decision — is that the concept of transmission includes broad dissemination, causing anything to be conveyed. We know in the context of other areas of law, like transmission in the computer data provision, that transmission does include one-to-one transmission through email.
Senator Simons: I have time for one more question. I have to tell you that I met with the lawyers who litigated this case earlier this week so that I could sound like I knew all the facts and remembered them. The concern they raised to me is that if you put in the phrase “otherwise made available,” it would capture every public library, every newspaper archive or every archived Google story. It would capture a provincial archive. Once someone has legally been named, it is not a reasonable expectation — and both the lower court and the Court of Appeal in Alberta agreed — to expect people to go back and edit history. Any public library could potentially be charged — I don’t know if it would be a criminal contempt or a different charge — because they left a hard copy of a newspaper on a shelving unit.
Mr. Taylor: I think those are fair concerns. I think they are legitimate concerns. I think the minister said last week he was open to considering these issues. As I said earlier, we’re trying to support the minister in working through some solutions to some of the challenges that have been identified.
Senator Simons: Thank you very much.
[Translation]
Senator Clement: Good afternoon to our witnesses. I agree with Senator Dupuis’ comments; you are always welcome and always helpful. I often agree with what Senator Dupuis says. I’d like to ask you if you have the brief dated June 6, 2023, from the group of organizations, which is before us.
Ms. Desharnais: We don’t have a paper copy, but we have access to it on our telephones.
Senator Clement: So you’ve seen it and you’ve analyzed it. I’m going to ask you a technical question about recommendation 4. I don’t have the French version in front of me, so I’ll quote it in English.
[English]
Generally, a formal hearing should not be required to revoke or vary a publication ban, except in limited circumstances. Survivors should not bear the high financial and emotional costs for what should be a simple and straightforward process.
[Translation]
With regard to this recommendation, are there any particular challenges you’ve encountered with this type of amendment?
[English]
Mr. Taylor: I am just trying to pull up the amendment, senator.
Maybe I can start by addressing what the bill was trying to do where the reference to the holding of a hearing is concerned. As I think I said last week, it’s not necessarily intended that it be a formal hearing — a separate hearing — that happens on a later date whereby submissions are made. It was meant to really reflect what we understand to be practice in courts today, which is where a victim seeks revocation, normally, through the prosecutor. The prosecutor informs the court if the case is still live or, if it happens later, a court of equivalent jurisdiction, and then the process. It’s not meant to be onerous. The idea of mandating that hearing was to provide that certainty to victims that their concerns would be heard. I hope that helps in some part to answer your question.
Senator Clement: I suppose it’s good to hear this morning that we’re getting some clearer understanding of the process, that government is working with these groups on these amendments and that we will get greater clarity at some point soon. I just wanted to drill into that recommendation technically, but I guess that work is already being done.
Mr. Taylor: Absolutely. The minister is open. It is a difficult process to arrive at a regime that provides flexibility to allow prosecutors to seek and obtain the protection of a publication ban in cases where victims are not immediately reachable to inject a greater place for victims in that process —
Senator Clement: At every step.
Mr. Taylor: — at every step of the process — to address the concerns that Senator Simons has talked about around open court principle and freedom of the press and to not bog down the justice system procedurally. So it’s trying to address all of those various concerns and legitimate interests in a framework that provides clarity and ease, frankly, for those affected by the publication bans. We are absolutely working to support the minister on these issues.
The Chair: We have time for a second round.
Senator Dalphond: I would like to follow up on Senator Dupuis’ idea. How far can we go in the Criminal Code about the duty to inform? The bill provides that it would require judges to ask some questions to make sure the duty to inform has been complied with by the Crown. We can prescribe criminal procedures, but we’re not responsible for criminal administration of the courts. We can tell judges to ask specific questions and to factor in certain issues. The bill has been addressing that so far, but the problem is when the trial is over. Is there precedent somewhere else in the Criminal Code where we could say the prosecution has some kind of obligation if the victim calls back, by a call or an email or a letter, to ask for removal of the prohibition order? Then it would be compelling on the provincial crown.
Mr. Taylor: I’m trying to think of a parallel example. I’ll look to my colleagues. I cannot think of one immediately, but I think you’re right again. Maybe it builds on my previous answer. We are mindful that we are supporters of the federal government, which is not responsible for the administration of criminal justice. This is primarily for the provinces to implement. It may well be that they are better placed to answer those kinds of questions. The beauty of law reform is that there is considerable scope to achieve policy objectives. My advice would be, generally, that it’s important to find a way to nudge the system without overburdening it and making it impossible to —
Senator Dalphond: I am sorry to interrupt, but the time is running on. The senator just alluded to it. You have money. The witnesses referred to it. That means you will negotiate with the provinces, and you will offer money. There could be an MOU that deals with that, but we have no guarantee that it will be done, in a sense. Sometimes the money is applied partially to that and partially to something else. If we have the specific provisions in the Criminal Code, then we know the system has to comply with it.
Mr. Taylor: Yes.
Senator Dalphond: That’s why I’m trying to figure this out. We have the impact statement or victim’s declarations. We have put that in the Criminal Code, so this is the form that the provinces must use. Can we say that, once the trial is over, the Crown must send a form to the victims to inform them about their rights and what is coming next? Then the victims could write back. We could inform them that they can ask the prosecution to do a follow-up.
Mr. Taylor: Yes, a statutory provision that provides an anchor to that kind of process would provide a bit more certainty, a bit more clarity. Justice Canada and Ontario — although I didn’t look at all jurisdictions — has public information on publication bans. It speaks to the ability of victims to subsequently apply to revoke or vary the bans. There is some precedent for a statutory provision that can, as I say, anchor the provision more concretely. It might help to ensure greater consistency of practice.
Senator Busson: Again, thank you all for being here. I really appreciate it.
We’ve been talking about the victim’s right to information vis‑à-vis the publication ban. May I change the focus just a little bit to the victim’s right to information vis-à-vis the new obligation created in Bill S-12 to Corrections Canada? From my perspective and from my experience, this clearly turns a practice of Corrections Canada into a legal obligation — a very serious legal obligation, I might suggest. I worked with victims in my past life who have run into their offenders in shopping malls and other places when they’re not aware that they’re even out of jail. Does this bill, or the regulations that will certainly be attached to it as it comes into force, contemplate a somewhat rigorous set of rules, or at least timeliness requirements, so that people can rely on this and not have a false sense of security about this kind of information? It’s a “No news is good news” sort of issue.
Mr. Taylor: I can’t be entirely helpful other than to say you’re right in the sense that it does impose that clear obligation. To Senator Dalphond’s previous point, the forms in the code would be amended. The bill was written to allow the victim to signal in a very concrete way that they wish to receive that information. We will continue to work with our partners and Public Safety and the correctional services. They are very mindful of the importance of timely information to victims in the context of corrections and federal offenders. I can’t offer any more at this moment, though, senator.
Senator Busson: Thank you very much. That’s helpful.
The Chair: Thank you, Mr. Taylor. This brings to a close our discussion with officials from the Justice Department.
I want to highlight two or three things going forward. We are looking at holding a clause-by-clause session beginning at 6 p.m. We probably need that resolved by the whips, but we expect 6 p.m. for three hours on Monday evening. That, therefore, encourages all of us to put all our amendments together in consultation with the Law Clerk. As timely a submission as possible would be helpful.
In this slightly unusual nature — I am saying this in your presence, Mr. Taylor, because it would be a useful message to convey back to the minister — if there are government amendments that will be hopefully introduced through Senator Busson, the earlier that those can be made available, the better. We are asking senators to do as good a work as they can, but we’re somewhat in the dark if the government has a package of ideas that they would like to put on the table. Out of respect for senators’ work over the course of the weekend, it would be helpful if we had the ability to know about those before the end of day tomorrow. I hope that’s a tactful way of saying we would like to stabilize the process here.
Beyond that, we thank you, Mr. Taylor, Ms. Wells, Ms. Desharnais, for joining us once again and for clarifying many issues in your usual, helpful way. We look forward to seeing you again before too long.
(The committee adjourned.)