THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Monday, June 19, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 6:05 p.m., to give clause-by-clause consideration to 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: Honourable senators, let’s get started. I would ask my colleagues to introduce themselves, starting on my right.
Senator Boisvenu: Pierre-Hugues Boisvenu, senatorial division of La Salle, Quebec.
[English]
Senator D. Patterson: Dennis Patterson, Nunavut.
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
Senator Dalphond: Pierre J. Dalphond, senatorial division of De Lorimier, Quebec.
Senator Dupuis: Renée Dupuis, an independent senator, I represent the senatorial division of The Laurentides, Quebec.
[English]
Senator Busson: Bev Busson, senator from British Columbia.
Senator Simons: Paula Simons, senator from Alberta, Treaty 6 territory.
The Chair: Brent Cotter, senator for Saskatchewan and chair of the committee. I would like to welcome back Mr. Taylor and Ms. Wells to assist the committee in its deliberations as we begin clause-by-clause consideration of Bill S-12.
Before we begin, I would like to go through a series of reminders. First, if at any point a senator is not clear where we are in the process — and that is liable to happen today; there are a number of amendments — please ask for clarification. I want to ensure that at all times we all have the same understanding of where we are in the clause-by-clause process.
If a senator is opposed to an entire clause, I would remind you that in committee, the proper process is not to move a motion to delete the entire clause but to vote against the clause as standing as part of the bill.
As chair, I will do my utmost to ensure that all senators wishing to speak have the opportunity to do so. For this, however, I will depend on your cooperation and goodwill. I would ask you to consider other senators and keep your remarks to the point and as brief as possible, including, if you’re so inclined, a sentence that might read something like, “I agree with Senator X.”
Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the result of a voice vote or a show of hands, the most effective route is to request a roll call vote, which, obviously, provides unambiguous results. I think it is one of the clerk’s favourite things to do. Senators are aware that any tied vote negates a motion in question.
Are there any questions about any on the above, before we begin?
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry? I’m going to invite Senator Simons, who has an amendment.
Senator Simons: I would like to propose the following amendment in clause 2:
That Bill S-12 be amended in clause 2,
(a) on page 1,
(i) by replacing lines 8 to 17 with the following:
“2 (1) Subparagraph 486.4(1)(a)(i) of the Act is re-”,
(ii) by deleting lines 23 and 24;
(b) on page 2, by deleting lines 1 to 7.
Now, what does that mean in English? This is the wording we’ve been given by the law clerk to basically take out the words “or otherwise made available,” which is the only substantive change to this clause. Rather than just saying this clause shall not carry, the law clerk advised us that this was the more elegant way to deal with this problem.
Why delete the words “otherwise made available”? As we discussed in our last meeting, the phrase could have the consequence of criminalizing people in the case of a newspaper or television broadcaster for making them responsible ex post facto to remove names from previously published stories, which is tremendously difficult. It could also criminalize libraries, archives and others who keep past stories on file. The concern that was raised by people in the media law community is that that phrase could have the consequence of penalizing the media. A court decision from the Alberta Court of Appeal, however, clearly laid out that publishers ought not to be held accountable to go back and rewrite history.
I believe the government largely concurs with this amendment. They have their own amendment, which effectively does the same thing. This is the language that the law clerk advised.
The Chair: Senators, are there comments or interventions?
[Translation]
Senator Dupuis: I understand what was just said, but I don’t understand the document before us. Can someone explain exactly what this document means? What is being replaced? What is being amended? Thank you.
[English]
Senator Simons: What it effectively does is to just take out this paragraph. To make everything flow logically, this is the advice of the law clerk to phrase it this way.
Now, Senator Busson has a different version of basically the same amendment, which doesn’t have all of this subparagraph stuff in it and does the same thing.
Perhaps Mr. Taylor can advise us which version is preferred. The intent of both amendments is identical.
[Translation]
Senator Dupuis: Just to ensure that we proceed in order — this might take a while, anyway — we have an amendment before us. We are told there’s a government amendment that does the same thing. Could we first ask the bill’s sponsor to introduce it, and then we could ask our witnesses to explain the difference between the two? Thank you.
[English]
The Chair: It could happen in debate, but I think the present point should be to invite Mr. Taylor to respond to Senator Dupuis’s initial question.
[Translation]
Senator Boisvenu: I agree with Senator Dupuis. If two amendments are being proposed, one by a senator and the other by the government, someone needs to explain the difference, so we can decide between the two. Otherwise, we’ll be here until midnight.
[English]
Senator Dalphond: I think I would prefer to start with amendments from the government, because they are drafted by the government, and after the amendment is disposed of, if there is anything remaining, we could revisit the issue. But I would start with government amendments.
The Chair: In light of that, Senator Busson, do you want to speak and present your amendment on the same point, and then we will invite Mr. Taylor to offer a perspective?
Senator Busson: Certainly, I can do that.
As Senator Simons says, it has the same context, but my amendment reads that Bill S-12 be amended in clause 2(a) on page 1 by deleting line —
[Translation]
Senator Boisvenu: When you present an amendment, could you please provide the number of the amendment? Could you tell us what the numbers correspond to?
[English]
Senator Busson: Sorry. It is BB-S12-2-1-8:
That Bill S-12 be amended in clause 2,
(a) on page 1,
(i) by deleting lines 8 to 16,
(ii) by deleting lines 23 and 24;
(b) on page 2, by deleting lines 1 to 7.
The Chair: Mr. Taylor, do you want to offer any perspective you have on these two amendments?
Matthew Taylor, General Counsel and Director, Department of Justice Canada: If I understood correctly, it is the identical amendment as to Senator Simons’. The effect is as Senator Simons described it, which is, as I understand it, to remove the “otherwise made available” proposal in Bill S-12. Otherwise, for example, clause 2(ii) of the bill, which adds a new offence to the list of offences for which a publication ban would be available would still remain. It’s just to remove the “otherwise made available” language.
The Chair: Are there other comments on the substance of the amendment?
Given that they’re identical, I’m inclined to defer to Senator Simons with respect to this one. Senator Busson will have plenty of amendments to present.
Senator D. Patterson: Well, her motion is already on the floor.
The Chair: Exactly, yes.
No further discussion?
Shall we adopt the motion in amendment? This is Senator Simons’ amendment.
Hon. Senators: Agreed.
The Chair: And Senator Busson’s is not present.
Carrying on with respect to clause 2, Senator Busson?
Senator Busson: I have an amendment named BB‑S12-2-1-22:
That Bill S-12 be amended in clause 2, on page 1, by adding the following after line 22:
“(2.1) Paragraph 486.4(2)(a) of the Act is replaced by the following:
(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;
(2.2) Subsection 486.4(2) of the Act is amended by adding “and” at the end of paragraph (b) and by adding the following after that paragraph:
(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.”.
The second amendment around clause 2 would address concerns that the amendments should empower victims with knowledge about what the changes are and what is actually included in what the publication ban informs them about.
I’ll ask the officials if you could be a little more concise about the language.
The Chair: I might invite Senator Pate, so that you’ll have a collective expression to respond to, Mr. Taylor.
Senator Pate: Similarly, we propose an amendment. It’s S12-2-2-14. The main difference is that unlike the one Senator Busson is proposing, we also include a duty to inform that isn’t included in Senator Busson’s amendment. There is a duty to inform individual victims of their rights on how this order will impact them.
And there is also nothing in the proposed amendment to ensure that individuals would have culturally appropriate information, so the wording that we’ve proposed in S12-2-2-14 is the kind of wording that was proposed by the women’s groups, the National Association of Women and the Law, also referred to as NAWL, and other women’s groups. The objective is to ensure that we prevent the criminalization of individuals, and it reflects the testimony and joint proposal that we received, including an approach that is similar to that used in the state of Victoria in Australia, which a number of witnesses spoke to.
The alternative amendment also raises concerns, given the victimization and criminalization that many victims and survivors of sexual assault experience within the criminal legal system or that they potentially could, so we would prefer the proposed wording that we have in our amendment versus the one proposed by the government.
In terms of evidence, we have evidence from the NAWL proposal; Pam Hrick from the Women’s Legal Education and Action Fund; Aline Vlasceanu, Canadian Resource Centre for Victims of Crime; Morrell Andrews, a member of My Voice, My Choice; and, Suzanne Zaccour, National Association of Women and the Law. Matthew Taylor from the Department of Justice indicated that:
. . . 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 . . . .
You indicated that you understood why this was of interest and an issue. Then we had examples that were proposed by the various groups as well.
So that’s the rationale for providing the alternative wording. Similar objective, I would say, but it goes a bit further.
The Chair: As a point of clarification, the impression I have is that this amendment could pass and could be built upon with yours. Is that fair to say, Senator Pate? I think Senator Boisvenu was going to make that point perhaps but I jumped the gun.
Senator Dalphond: It is a point of order. I think there is an amendment to replace — Senator Busson has proposed to remove in clause 2, page 1 by adding the following after line 22. Are we still dealing with line 22, because I think the other amendment is with a different line? It is kind of confusing. We should be doing the lines where they are. If it’s coming at line 10, let’s first go to line 10 and then we do line 22, but here I’m quite confused, frankly.
The Chair: I’m going to invite Senator Pate to hold her line of argument with respect to her amendment in abeyance until we get there and deal with this one and then see where we go.
[Translation]
Senator Boisvenu: As far as the government’s amendment is concerned, there is no obligation. What I don’t like about the government’s amendment is the phrase “as soon as feasible.” What Senator Pate is proposing introduces the notion of obligation.
Senator Pate, I don’t know whether we’ll come back to your amendment later. Do you think that the amendment currently before us does or does not introduce a sense of obligation?
[English]
Senator Pate: [Technical difficulties] we proposed it we didn’t see it as strong enough to reflect the evidence we received.
Senator Dalphond: The amendment of Senator Pate is on page 2?
Senator Pate: No, they’re on page 1 as well. It’s repealing the same provisions, the initial provisions, as Senator Busson. Clause 2 and then adding a new 2.1 and 2.2. Then removing (3) and the following and then replacing.
[Translation]
Senator Dalphond: I don’t understand.
Senator Dupuis: If I understand correctly, Senator Busson’s amendment, on behalf of the government, is designed to add, on page 1, subsection (2.1), which states: “Paragraph 486.4(2)(a) … is replaced by the following:” and subsection (2.2).
Thus, two paragraphs are being replaced and one paragraph adds new elements, so that’s one thing. Can we first proceed with this amendment, because it’s the government amendment, and then consider Senator Pate’s amendment after that?
[English]
The Chair: I think so. Senator Pate seems okay with that. I think there is consensus. You’ve heard this introduced by Senator Busson. Are there any further comments or discussions on this motion, which is 2-1-22? Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: This takes us next to Senator Busson’s S12-2-2-7.
Senator Busson: Thank you, Mr. Chair.
That Bill S-12 be amended in clause 2, on page 2, by adding the following after line 7:
“(3.1) Subsection 486.4(2.2) of the Act is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):
(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.”.
I believe that’s fairly self-explanatory in the change. Again, it gives the victim agency and the right to be informed and their right to apply to revoke it, which is substantially different from the original.
Is there anything else you’d like to add to that?
The Chair: I think that’s an invitation to you, Mr. Taylor.
Mr. Taylor: I just saw Senator Pate’s hand up so I didn’t want to get ahead.
Senator Pate: I was going to say this is another one where there is not a duty to inform that is a corollary to this. I’m just pointing that out.
Senator Simons: The text I have in front of me seems different. Is this a different amendment?
Senator Busson: 2-7.
Senator Simons: I’m sorry. I’m ahead of myself. My apologies.
Mr. Taylor: Thank you, Mr. Chair. This amendment is identical to the amendment that you’ve just discussed and approved. It relates to the obligation of the court to inform the victim or witness of their right to apply for a publication ban. The proposed paragraph (c) in the motion that you’re debating speaks to the court’s obligation to inform the victim of the existence of a publication ban if one has been made and then their right to apply and revoke it. This applies specifically to child victims of all crimes, other than those listed in 486.4(2), which is the provision that deals with sexual offences specifically.
This motion deals with child victims and their right to be informed of their ability to apply to revoke or vary a publication ban.
The Chair: Are there further comments or discussion with respect to this amendment? Hearing none, is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Thank you. I think we will move to Senator Pate, your amendment 2-2-14. That might be the most logical sequence for consideration of these amendments.
Senator Pate: This amendment proposes to amend Bill S-12 in clause 2, on page 2 by replacing lines 8 and 9 with the following. Do you want me to read it out or do you all have it in front of you?
The Chair: I think maybe for anybody who might be listening. They likely don’t have it.
Senator Pate: Sorry, thank you, for the people listening.
That Bill S-12 be amended in clause 2, on page 2,
(a) by replacing lines 8 and 9 with the following:
“(4) Subsection 486.4(4) of the Act is replaced by the following:”;
(b) by adding the following after line 14:
“(4) An order made under this section does not apply in either of the following circumstances:
(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or
(b) the disclosure of information is made by a person who is subject to the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by that order.”.
This is in a situation where there are multiple victims. The amendment is to prevent the criminalization of persons, particularly the most vulnerable, who breach non-publication orders by disclosing their own information without intentionally or recklessly revealing the identity of others. It reflects the testimony and joint proposal we received from the women’s groups, the National Association of Women and the Law, or NAWL, and others on behalf of several other organizations with some small technical amendments. Its approach is similar to what is currently done in jurisdictions such as the State of Victoria in Australia.
To match the scope of what was proposed by NAWL, this is the first of three related amendments where the goal is to ensure that this provision applies to three types of publication bans under the Criminal Code. This piece applies to provisions governing publication bans ordered in cases of sexual assault under section 486.4.
The other two consequential amendments that I propose to move later would apply identical provisions to 486.5 governing publication bans in non-sexual assault cases, and section 672.501 regarding publication bans ordered by review boards dealing with cases where individuals are found not criminally responsible by reason of mental disorder or are unfit to stand trial.
The government proposed an alternative to this amendment that, contrary to NAWL’s proposal, provides that it is still a criminal offence to disclose one’s own information but indicates that prosecutors should not bring charges against individuals except in certain limited circumstances.
The government’s approach raises concerns that given the re‑victimization and criminalization that too many victims and survivors of sexual assault experience within the criminal legal system, many will be reticent to exercise their right to disclose information in a situation where prosecutors still exercise some discretion over whether or not they will be charged for doing so. That’s the rationale.
Again, I already indicated this came out of evidence from the proposal as well as the direct testimony of Pam Hrick from the Women’s Legal Education and Action Fund; Aline Vlasceanu from the Canadian Resource Centre for Victims of Crime; Morrell Andrews from My Voice, My Choice; as well as Suzanne Zaccour, National Association of Women and the Law.
As I mentioned, Mr. Taylor provided some implication that there was an understanding as to why this would be seen as useful by victims, and the brief itself talked about this kind of immunity, very similar to the type that already exists within the youth criminal justice system and the Youth Criminal Justice Act, and, basically, it was proposed as a way to try to build the trust of victims in the system.
The Chair: To give you some context, Senator Busson has an amendment that may be under consideration. It is the next one down, 2-2-12, which addresses the same issue but doesn’t go nearly as far as this one.
I think that’s fair to say, Senator Busson. Do you want to speak to the general issue without necessarily zeroing in on the specifics of your amendment?
I may ask Mr. Taylor to speak to this.
Senator Busson: While I agree and believe that the groups that we heard from were adamant about having the ability to have control of publication bans and their place in it, I believe that Senator Pate’s amendment perhaps goes a little too far, is a little too prescriptive vis-à-vis what she is trying to achieve. It’s clear that now the prosecutor has a direct duty to inform the victim and the witnesses, and words like “shall,” et cetera, will make it much more directive.
I appreciate where Senator Pate is coming from, but I believe that we don’t need to go that far with the wording.
I could read my motion, but I’m wondering if anyone else has any comments.
Senator Simons: I am attracted to this amendment because it holds open the possibility of people being able to tell their story in any forum and being able to talk about what happened to them, not just in private conversation but in public discourse. I’m worried that that leaves open the potential for the prosecution of publishers, whether that’s book publishers or newspaper publishers.
I would be very curious to hear Mr. Taylor’s analysis of just how far this takes us.
The Chair: We’ll come to you in a minute, Mr. Taylor, but we will get all of the perspectives on the table.
Senator Dalphond: I have more a question than a comment, so my question is for the officials.
[Translation]
What the government is proposing, and what would be added after subsection (4), is a subsection (5) that will exclude the offence in defined circumstances, if the disclosure of information is made “by the victim or witness when the purpose of the disclosure is not one of making the information known to the public.”
In other words, if it’s discussed at a family reunion, a forum or even a symposium involving experts in a given field, as longs as there’s no intent to make it public, it’s covered.
A new element is being added here to subsection (4). Senator Pate’s amendment seems long, but subsection (4) begins with paragraph (a), which already appears in the Criminal Code. However, it adds a new paragraph, if I understand correctly, paragraph (b), which reads as follows:
(b) the disclosure of information is made by a person who is subject to the order ... in any forum and for any purpose ... and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person ...
I assume the second exception is when it does not pertain to any other person. When someone is talking about themselves, these are details about that individual or those details, regardless of whether they’re made public or not. In the government’s proposal, however, the offence does not apply if the communication is not intended to make the information known to the public.
These are two entirely different approaches. One says that you can speak not only to your therapist, but to your family, friends and even perhaps at a gathering with your neighbours. However, you can’t make that information public. In the amendment proposed by Senator Pate, as I understand it, the information could also be communicated in order to make it public. However, the government doesn’t want to make it public. It doesn’t prevent anyone from talking about it, as long as it’s not with the intention of making that information public.
I’m hoping someone can explain the difference and explain the government’s logic. Does the government want to maintain the order as long as it’s not revoked? Can you just explain all that to us? I’m sorry my question was so long.
[English]
The Chair: I want to enable you to have the last perspective, but you may benefit from Mr. Taylor’s point of view on this. Do you want to observe now and then we’ll turn to him?
Senator Pate: We’ll have Mr. Taylor comment. Also, the difference between our provisions is that this one imposes a bit more of a duty on the prosecutor to investigate and inform, whereas the one originally proposed does not. This really goes to the point that the Kitchener case came to, which was disclosing information in another context that rendered the person subject to criminalization. That’s really what we’re aiming to do.
I would appreciate any comments you have on that.
Mr. Taylor: There are a lot of questions and a lot of good commentary. I’ll try to do my best to hit on all of them. If I miss something, please just poke me.
Senator Pate’s amendment 2-2-14, as I read it, the key difference from the law today is the addition of proposed paragraph 4(b). Paragraph 4(a) is already in the Criminal Code, so really, the operative change is to paragraph 4(b).
Its objective is similar to the objective motivating Senator Busson’s amendment at 2-2-12, but they try to do it in different ways.
Senator Simons, I think your question was as to what extent these amendments speak to publishers or others. They don’t. They only apply to victims or witnesses who are the subject of the publication ban and who themselves disclose information. To the extent that there is an additional policy concern that you have identified around other individuals or groups, that isn’t addressed in these amendments.
In terms of the differences between the two, as I see them, Senator Dalphond is quite right in that the government motion, if I can call it that, Senator Busson’s motion, really is about restricting the public dissemination of information. The policy objective of publication bans generally is to constrain the sharing of information. With the government motion, you could have those private conversations. You could discuss that information privately if the objective is not to share that publicly.
To a certain extent, Senator Pate’s amendment does that as well, but in a different way. The government motion, for example, would allow a victim or a witness to disclose information privately that could possibly identify another victim or witness whereas Senator Pate’s amendment would not. It builds in that limitation. The logic of the differences, I think, is somewhat evident in the private dissemination of information. You’re still safeguarding the privacy interest so that if you’re talking to a councillor or a medical professional, that information is protected. If you’re podcasting, for example, you don’t have the same control over the information.
One other thing with Senator Pate’s amendment to consider is the language of the identity of another person protected by that order. Conceivably, there could be other orders that would apply, so the publication ban in place vis-à-vis the individual who wishes to tell their story applies. There could be a separate publication ban in respect of another victim in the same case. As I read it, this amendment doesn’t speak to that scenario because it requires the order to be the same order as the victim or witness is subjected to.
I don’t know if I answered all the questions, but I’ll stop there.
The Chair: I’m going to invite Senator Dupuis. I’m trying to minimize the degree to which this turns into a debate, but just kind of an exchange of questions.
[Translation]
Senator Dupuis: I have a question for you, Mr. Taylor. I’d like some clarification. Thank you for sharing your opinion with us.
There is a key issue in the wording of the government’s amendment, number 2-2-14. It reads as follows:
(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public.”
Thus, there would have to be an intent, a goal of making the information known to the public. That answers my question.
Senator Pate’s amendment, which is numbered KP-S12-2-2-14, mentions “any forum” in paragraph (b), where it reads: “... in any forum and for any purpose ... by a person whose identity is protected....”
Is the notion of a forum a recognized legal concept enabling us to determine with relative precision, if not absolute precision, completely certain and safe — Does the introduction of this term correspond to an otherwise known legal concept?
Mr. Taylor: Thank you for the question.
I think you’ve given a good explanation of the objective and the reason for government’s proposed amendment. Senator Busson’s amendment, which mentions the word “forum” is —
[English]
I wouldn’t be able to say definitively whether that is a term used in other parts of the Criminal Code or in other federal statutes, but my reading of the objective here of “in any forum and for any purpose,” is that the intent is to have it apply broadly. I’ll be corrected if I’m wrong, of course, but whether it’s talking to a counsellor, or talking to a group of friends, or talking to a support group, regardless the venue, regardless the reason why the discussion, just the conversation with a friend, part of the counselling and support program, I think the courts would generally use rules of statutory interpretation and understand “forum” and “purpose” in their ordinary sense and try to obtain the objective based on their ordinary meaning.
Any forum — it could be public, it could be private.
[Translation]
Senator Dupuis: Thank you.
[English]
Senator Dalphond: I have two questions: One for Mr. Taylor, one for Senator Pate. Mr. Taylor, I understand the provisions proposed by the government, subparagraph 5, says that there is no crime essentially, because the mens rea is missing if it’s not intended to do for the purpose of disclosure to the public. That’s the mens rea. It has to be done with the intent of disclosing to the public.
Mr. Taylor: That’s a very good question, Senator Dalphond. The proposed amendment and the existing provision in the code now, at subsection 4 are carve-outs from the application of the publication ban. They are not in and of themselves offence provisions. They are just exceptions. They make clear that this conduct is not captured within the order of prohibition on publication. You never get to the stage where you are contemplating laying a charge or prosecuting because you have carved out the conduct from the provision in and of itself.
Senator Dalphond: I think of somebody after a rape, for example, there is a civil litigation for damages and the person will have to inform the court of the details of the crime. In theory, that will be covered by the ban, but subparagraph (4) will say, “No, in such a case, you can talk. No, don’t worry.”
Mr. Taylor: Yes.
Senator Dalphond: Subparagraph (5) will bring to it another, “Don’t worry, if you disclose in a forum, or elsewhere, but not with the intent to make it public; therefore that won’t be covered.”
Mr. Taylor: Exactly.
Senator Dalphond: Okay. Senator Pate, then I think I agree with what you said — that is, assuming this is the right answer. Senator Pate, when you say “in any forum and for any purpose,” do you include, for example, an interview with the press, the media?
Senator Pate: I would, yes. One of the issues that was raised by witnesses is that victims are being criminalized in the context where they may not even know about the ban or they were talking about it and thinking they can talk about their own situation but not somebody else’s. The aim of the amendment that I’m proposing is not criminalizing the victim.
Senator Dalphond: Yes, but you don’t criminalize. If they have communication, if I understand properly, if they disclose in a forum, so they have to be in French, “dans tout forum.”
What is a forum? That’s why I am asking the question. Does it include an interview with the local radio station or the local television network?
Senator Pate: It potentially could, yes. So as I say, the focus is on ensuring that they have clear messages not criminalizing the victim.
Senator Dalphond: But the essence of the crime will be that it’s not done in a forum. We will have to define what is a forum and what is not a forum to decide what is and is not covered? That’s my issue.
The Chair: Thank you. I’m going to invite each of Senator Busson and Senator Simons. I know Senator Pate had a more general observation to make that we haven’t gotten to.
First, could I ask this question, Mr. Taylor? This is me trying to interpret this provision, particularly Senator Pate’s. There is fairly generous language in paragraph (b) that would enable a victim to their share story as long as it wasn’t done intentionally or recklessly to reveal the name of somebody else protected by a publication ban, if I understand that part of it.
The language here is that an order under this section doesn’t apply if that happens. It doesn’t seem like it just immunizes the victim from what they had to say, but the order is kind of inoperative in those circumstances. That suggests to me that it also immunizes the CBC if the pattern is the way in which Senator Pate described, which is that a person could give an interview. I don’t know what the word “forum” means, but it has a flavour of that you can tell your story wherever you choose. The immunization of the order and the cancelling of the operability of the order, it doesn’t say it immunizes the victim; it says the order is kind of inoperative.
Does that, then, solve the problem for the CBC in that situation? I’m trying to think my way through this pretty much as we have the conversation. Do you have thoughts on that?
Mr. Taylor: Yes. These are the difficult issues that I know you’ve been grappling with.
First of all, I don’t read either the amendment that Senator Pate has proposed or the government amendment as an immunity provision. I would go back to that it’s more of an exception. The language of, “an order made under this section does not apply,” is really meant to say that if a publication ban is ordered, this conduct is not captured by it. This conduct is out from the very beginning. Therefore, there is no real question of somebody being potentially charged or prosecuted for it because this conduct, in and of itself, has never been captured by the publication ban when it was made.
On the question of the media, I would go back to my previous answer in the language of Senator Pate: The disclosure is made by the person who is subject to the order.
I understand your statement, Senator Cotter, in that you’re saying that the person who is protected, is the victim, but it doesn’t necessarily mean that this provision is limited to them. I would read it, though, given everything I have understood the committee to be grappling with that this is really directed at autonomy for the victim and the victim being able to tell their story. As to whether a court would interpret it more broadly and apply it to others, it’s not for me to say, but I would think that would be inconsistent with the purpose of publication bans, first and foremost, and all the consideration you have had as to the particular issue of victim autonomy.
The Chair: It seems to me we’re left in a state of non‑equilibrium. That is, the victim could tell their story to the CBC, which is what this amendment would do, and there would be an exception to prosecution, but the CBC can’t publish it.
That defeats the whole purpose of the communication, I would have thought, Senator Pate. If the victim can speak to a public disseminatable entity, but the public disseminatable entity runs the risk of prosecution if they run the story. It seems to me you wouldn’t want that outcome. It seems to me you would want to either not tell the story or, as long as you’re careful in the telling of the story, as best you can, it should be able to be shared. That strikes me, anyway.
Senator Pate: Admittedly, this is not an attempt to gain immunity for the media; it’s an attempt to prevent criminalization.
The discussion with the law clerk and with legal authorities was that you have to make it broader because what often happens — or can happen, and has happened in the criminalization of some of the victims — is that they are asked a question and they may or may not know they are talking to the media. They disclose and then they get criminalized. That’s exactly what has happened in some of the cases.
This was meant to be broad, to encompass the areas where people have been criminalized and to prevent them from being criminalized in the future — where it’s their story, they are telling it to whomever and they are telling it in a variety of contexts.
That’s the objective. If there is a way to improve it, I’m happy to do that. I don’t think the objective is at all different from the one Senator Busson has put forward, but it doesn’t cover situations where someone else may be asking you a question for other reasons and you may disclose things such that you’re unintentionally and not recklessly revealing your own story to someone whom you’re talking to.
Senator Simons: I would agree with the chair. I think you’re creating a huge problem for the media in this way. You could have a situation where it would be legal for a victim to tell their story on TikTok or to set up a YouTube channel and tell their story on YouTube, or to start their own podcast and tell their story on the podcast, but no media outlet could report that.
I support the intention of the amendment. I support the amendment. But as somebody who worked in media for many years, I am concerned that this creates a tripwire that media organizations might not know about; that a victim will come to them thinking they are free to speak, and only later will the media organization find out that they are charged with criminal contempt.
Senator Busson: I tend to agree. The amendment I proposed was more or less back to the fact that the victim ought not intentionally speak, so that things would be made known to the public or to the community. As Senator Dalphond said, it is sometimes hard to find someone’s intention. However, it is really the intention that has now become the focus of Bill S-12 in that if the victim intends to breach the ban, that’s what is being sanctioned and that any number of mistakes would be forgiven.
Even in the language, it talks about whether it was intentional or non-intentional. It suggests that and goes on to say even whether or not it might be forgivable, or the wording being a “warning” — that it would not be an appropriate response to be a warning. I think it’s pretty clear from the drafters exactly what the intention was.
Senator Pate: With your amendment, though, victims could still be criminalized; right?
Senator Busson: If they out-and-out violated the ban intentionally. I would say under minuscule circumstances, in a case where they say, “I don’t care about the ban. I’m going to the CBC,” without regard to other people in the group, third-party interest, et cetera, I think there could be some kind of a situation. But I think it’s a fantasy that this would be an issue that would need to be addressed —
Senator Pate: Presumably, there wouldn’t be a ban if the victim had already expressed an interest. This would only be about others.
Senator Busson: Presumably.
Senator Pate: So there is still the odd chance they would be criminalized under that provision.
Senator Busson: There are exceptions. I can’t imagine what they would be, but it’s there. Otherwise, you wonder why there would be a ban at all. That’s not the regime we’re dealing with.
Senator Clement: My question is to Mr. Taylor, following up on the question of Senator Pate. Which one offers the most protection for the victim? I’m not thinking about the media here; I’m thinking just about the victim.
The victims whom I have represented are not lawyers. Some victims are lawyers, but the ones I represented have not been. They are not thinking about this, reading about this and understanding it. I would argue that it’s hard enough to understand in this meeting exactly what is happening. Sorry. I’m thinking of clients here.
Which one offers the best absolute protection for somebody who is not a lawyer, who is not reading this, who may not be aware or who, even after reading this, would not understand?
Mr. Taylor: Thank you for the question. First, it’s probably misleading to compare Senator Pate’s Motion No. 14 with Senator Busson’s Motion No. 14 because you also have an amendment from Senator Busson, BB-S12-5-3-18, which builds on this carve-out in 14.
Taken globally, Nos. 14 and 18 on the government’s side, and No. 14 on Senator Pate’s side — they’re all trying to get to the same place. Neither of them, taking the government motions combined or Senator Pate’s proposed amendment on its own, will 100% guarantee that a victim will not be charged or prosecuted for breaching a publication ban.
Senator Pate’s amendment makes it clear that if they unintentionally disclosed the identity of another person, they would be protected. It wouldn’t be caught by the publication ban. But if they did it knowing that their disclosure would have the effect of revealing particulars likely to identify any other person, then they wouldn’t be protected. Then the publication ban does apply to that conduct and there is potential for charge and prosecution.
Senator Busson’s amendment No. 18 is that next stopgap, that next safeguard. The starting point with the government Motion No. 14 is that this kind of conduct doesn’t apply. Later, with amendment No. 18, it says even if the conduct that you’ve engaged in does get captured by the law, there is another firewall that limits whether a prosecutor can start. It has the conditions.
Whether one offers more or less is difficult to say. They go at it in different ways, but neither provides a complete protection.
[Translation]
Senator Dupuis: Mr. Taylor, looking at the amendment currently before us, the government’s amendment moved by Senator Busson focuses on communication that is not intended to disclose information to the public. To follow up on Senator Clement’s thoughts, if I understand correctly from the amendments we’ve adopted this evening, what distinguishes us from the current situation is that we’ve included obligations to notify the person of the right to request an order.
There’s also an obligation to notify, as soon as feasible, witnesses and victims who are the subject of an order of the fact that they can request the revocation or modification of the order. The same applies to victims’ right to request the revocation or modification of the order.
The series of amendments we’re considering aim to change the current process considerably, insofar as there are now obligations to inform and notify at every stage. It will therefore be more difficult for a victim to justify having done so. I see a certain logic in the series of amendments and in amendment No. 14, which was introduced by Senator Busson, in relation to the ones we’ve adopted so far.
[English]
The Chair: I have a comment. Senator Dupuis, thank you.
I’m advised by the Law Clerk that these are not inconsistent motions and that they can be cumulative. It’s not as though if you vote for this, you’re necessarily voting against Senator Busson’s motion which would come along next or vice versa.
Senator Pate: Yes. The next one would fit well with both amendments.
The Chair: I will call the question.
Is it your pleasure, honourable senators, to adopt the motion in amendment as moved by Senator Pate?
Some Hon. Senators: Agreed.
The Chair: Do you want a roll call vote, Senator Dalphond?
Senator Dalphond: Okay. To be precise, we’re not debating Senator Busson’s amendment. We’re debating Senator Pate’s amendment about adding a subparagraph (b) in Subsection 486.4(4)?
Mr. Palmer: Yes. The vote will be on KP-S12-2-2-14.
The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Busson?
Senator Busson: Yes.
Mr. Palmer: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Palmer: The Honourable Senator Patterson.
Senator D. Patterson: Yes.
Mr. Palmer: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Palmer: Yes, 8. No, 1. Abstentions, 1.
The Chair: I declare the motion in amendment to be carried.
The next motion is Senator Busson’s, BB-S12-2-2-12.
Senator Busson: Again, I do believe there is quite a bit here. I will read the amendment and then make an explanation. I move:
That Bill S-12 be amended in clause 2, on page 2, by replacing lines 12 to 14 with the following:
“justice shall
(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;
(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and
(c) in any event, advise the prosecutor of their duty under subsection (3.2).
Duty to inform
(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have
(a) informed the victim and any witness who are the subject of the order of its existence;
(b) determined whether they wish to be the subject of the order; and
(c) informed them of their right to apply to revoke or vary the order.”.
This motion, BB-S12-2-2-12, is a clear shift in the position. Rather than have the witness or the victim being consulted, this switches it to a case where the judge shall ask the prosecutor. It creates duties for the prosecutor to make sure that the wishes of the victim or witness vis-à-vis the publication order are respected.
The Chair: Senator Pate, as you will see in the material, has a subamendment to this amendment. I invite her to introduce it now.
Senator Pate: I support this amendment with the addition that it be amended further —
The Chair: I will direct people to the specific number. This is KP-SUB-BB — which I take it to mean Senator Kim Pate’s subamendment to Senator Busson’s motion — so, in full, KP‑SUB-BB-S12-2-2-12.
If you have a package of amendments from Senator Pate, it’s the last one in the package. It’s relatively short and consumes about a third of a page.
Senator Pate: I move:
That the motion in amendment be amended by adding the following after the word “existence” in proposed paragraph (3.2)(a):
“, its effects and the circumstances in which they may disclose information that is subject to the order without failing to comply with the order”.
This is further to the point that, in addition to the information covered by Senator Busson’s amendment, the subamendment would provide that the prosecutors must inform those covered by publication bans about the situation in which they can disclose information without being prosecuted and/or criminalized. It provides a duty to inform.
I can go into further detail. This was some of the information, again, that was suggested by the witnesses. I don’t see it at all at odds, just strengthening the amendment.
The Chair: Any other comments with respect to the subamendment?
Senator Busson: I would like to have a comment from the officials on whether they see any issues with regard to that change to my amendment.
Mr. Taylor: It seems that it’s seeking to build on the prosecutor’s obligation in proposed paragraph (a) in terms of the kind of information they have to provide to the victim or the witness. I would draw to your attention whether you think it is appropriate that a prosecutor be required to provide information around how the victim or witness can or cannot conduct themselves without running afoul of the publication ban itself, whether that is a responsibility that is appropriate for a prosecutor to take on, providing that kind of direct advice on behaviour that they can do and they cannot do. I would offer that for consideration and whether that’s perhaps more circumscribed than you think it ought to be.
Otherwise, in general, it certainly does seek to provide greater or additional specificity as to what a prosecutor is obligated to do.
Senator Busson: I would suggest, given that comment, that it might be considered overly broad, given the circumstances and the issues that are made in the amendment with the duty to inform. I think it’s succinct, fairly clear and does not need to be that prescriptive to the prosecutor.
[Translation]
Senator Boisvenu: Where paragraph (a) states, and I quote, “if the victim or witness is present,” should it not read “if the victims or witnesses consent...”?
[English]
The Chair: Is it possible for us to save that conversation, Senator Boisvenu? We’re focused right now on the subamendment, and then we will turn back to Senator Busson’s amendment.
[Translation]
Senator Dupuis: Thank you for being with us once again this evening. It gives us the opportunity to ask you all kinds of interesting legal questions. I also think it’s useful because it helps anyone listening to us understand the issues involved in drafting legislative.
I’d like to come back to Senator Busson’s amendment, number 2-2-12, on page 2, which states in paragraph (a), and I quote, “informed the victim and any witness who are the subject of the order of its existence.” I’d like to add “and its effects.”
In other words, Crown prosecutors would not be engaged in giving legal advice to victims or witnesses on what individuals can do, should be able to do or will not be able to do, which may be outside the scope of their duties.
Do you have a different response?
Mr. Taylor: Thank you for the question. If I understand your comment correctly, you’re suggesting that the text be modified by adding “and its effects,” as Senator Pate has proposed?
Senator Dupuis: I’m still thinking of that as a possibility, but I’m not quite there yet.
Senator Pate’s amendment contains an extremely important element. We want the witnesses and the victim to be notified of the fact that they’re the subject of the order, so they’re notified of the fact that an order exists and of its effects. I think this falls within the scope of a Crown prosecutor’s duties and avoids getting into the realm of legal advice, which should be provided by legal counsel for the victim or the other party. I don’t doubt the good intentions of a Crown prosecutor, but it seems difficult to reconcile these two roles.
[English]
Mr. Taylor: It certainly adds to the amendment as proposed by the government in terms of not just articulating, as you’ve described, the fact that a publication ban exists, but also providing a bit more specificity as to what that means practically. It does build on that. It also perhaps addresses — and I can describe them — the risks that I was alluding to in the considerations that I was discussing a few moments ago around the obligation of a prosecutor and whether it’s appropriate for the prosecutor to provide information on failing to comply with the order. It does maybe get at the spirit of the amendment and maybe addresses some of those residual concerns that might exist with the proposal.
The Chair: This might be a question for Senator Pate. I like the spirit of this amendment, but I am made a bit anxious about the dilemma for prosecutors here. The prosecutor is required to provide information about the circumstances in which they may disclose information, which kind of invites the prosecutor to interpret the very provisions that we wrestled with for half an hour in the last little while.
It also presents the dilemma where the victim or witness says subsequently, “The prosecutor told me I could do this because that was what they told me when they were fulfilling this obligation.”
I’m wondering if it might be fairer to require the prosecutor to bring to the attention of victims and any witnesses the provisions of the Criminal Code that permit this, the same language as was identified in the last part here, but to not actually have to provide what feels like legal advice to the victim. I just have an anxiety about that. I think the bottom line is I would myself be supportive of this, but I worry about the subtleties around what the prosecutor does.
You could imagine how easy it would be for the prosecutor to say, “Here is a piece of paper that says these are the categories where the disclosure is allowed, but I’m not your lawyer to tell you exactly how this should be interpreted.”
I don’t spend a lot of time worrying about prosecutors, but it does seem to me an awkward situation to ask them particularly on the language around circumstances in which they may disclose. Maybe it’s a question for Senator Clement.
Senator Clement: It is not, but I understand your comment and Senator Dupuis’ comment, but that begs the question: Who is going to do it? If it is not the prosecutor, and I get what you’re saying and your anxiety around that, but we have heard witnesses, one after the other, say that there are no resources. Victims don’t have their own lawyers sitting through this process. If it’s not the prosecutor giving them information, who is going to do it? I understand your anxiety, but I just don’t know where to go, and I think Senator Dupuis was getting at a compromise maybe. That would be my response to you, Senator Cotter.
The Chair: It was a question for you after all, Senator Clement. Thank you.
[Translation]
Senator Dupuis: You’ll forgive me, Senator Cotter, for not worrying too much about your anxiety. I have an objection in principle, which is the following. We’ve heard repeatedly that the current system leaves victims at the mercy of Crown prosecutors. Just last week, I asked witnesses whether we should have a system of legal representation for victims in criminal proceedings, to ensure that their rights are respected and that their interests are clearly defended. This would take us out of the spirit of the 1892 Criminal Code, which we are still dealing with today and tinkering with, bit by bit.
I’d be tempted to say that we don’t want to ask Crown prosecutors to pretend that they’re going to inform victims and provide advice. We complain about this system, saying that victims are at the mercy of Crown prosecutors. We could add “and its effects” to the government’s amendment, but we need to have strong evidence that the committee has heard repeatedly that, in the criminal justice system, there should be a system of representation for victims and one that provides support to victims. I talked about legal, medical and psychological support.
[English]
Senator Busson: I’m just contemplating Senator Dupuis’ comments, and I guess I was a victim of the assumption that if the prosecutor was making the application or varying the application or dealing with the victim in such circumstances, that this would be a logical process within that application, the circumstances around what the varying or the lifting, et cetera, of that might entail.
The Chair: My impression is that my half-hearted attempt to defend the dilemmas for prosecutors has failed by fine arguments by my colleagues. I’m not going to return to it. We have covered this terrain, and unless Senator Pate has one final ever-so-brief observation —
Senator Dalphond: A point I wanted to make is that subparagraph 5 is really dealing with the intent to make public. I presume this provision would be kept. Maybe it is no longer necessary because of Senator Pate’s amendment. I assume it’s still there. It rests on the intent too. The intent of a person would be based on the understanding of what you said about the Crown saying in such a case you can do this, no problem, or it might be a problem, or maybe it is permitted. I don’t know. But the intent — I’m not really comfortable with this, imposing that on the Crown, but on the other hand, I’m quite worried about the victims being told that there was a publication ban issue and they are to find out by themselves what it means. To me, this is asking too much of the people that are agreeing to participate in the justice system to come out and say, “I’m exposing myself to a trial and maybe a preliminary inquiry, police examinations. I’m going through all these things, and I’m left alone.”
At the end of the day, I will say the Crown or somebody that the Crown finds will assess these people to explain what is expected or not. It is the worst situation to leave them in the dark and say, “Figure out what it means.”
The Chair: This further reinforces the brilliance of my decision to withdraw my half-baked idea.
Senator Pate: Just to add, the focus of this really was on decriminalizing victims. It’s not intended to put a huge burden on the Crown. I think it was you, Senator Cotter, who said you could imagine the way the Crown might deal with this is to have an information pamphlet that they would provide to everybody about what a publication ban means, and then tick off that they have fulfilled their obligation.
The Chair: Could we invite questions, then? Is it your pleasure, honourable senators, to adopt the subamendment?
Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: On division. I declare the subamendment carried on division. We now turn to the motion in amendment.
[Translation]
Senator Boisvenu: For the amendment, I would like to ask the senator if she agrees to change two words, in paragraphs (a) and (b), because I noticed that it was there in paragraph (b). Throughout the testimony we heard from victims, it was the word “consent” that they were talking about. They weren’t talking about wishes. They were talking about consent.
What I would suggest, if the honourable senator agrees, is to change the word “wish” with the word “consent,” or rather the verb. It could be something like, “if the victim or witnesses is present, inquire of the victim or witness if they wish to be....”
It would be the same thing in paragraph (b), “… if the victim or witness consent to be the subject of ....”
[English]
Senator Busson: I would say that’s not the appropriate language given the intent of, certainly, this amendment or the way that the government is dealing with this issue. We heard from witnesses that they would like to have full consent, but I believe that this wording — they say if they wish to be the subject of an order is — and it says “the justice shall.” It insinuates and suggests and talks about the fact that their wishes will be respected, but it stays away from the word “consent.” When we had the minister here as a witness, he talked about the fact that he would go farther toward consent, but that consent was not the language they would be using in any of this. I believe the intent of this is to move forward closer to total consent, but leaves a bit of a gap to allow for situations that — and I can’t imagine what they are at the moment — might allow for some judicial consideration.
Senator Dalphond: Maybe I can make a comment and ask the officials to confirm my understanding. The wording is “the victim or witness.” There could be many witnesses. So if they all have to consent, what do we do if three people have to consent? We take the majority of two of the three or we take the three? That does make the issue more complex. Some may wish to have an order and others do not wish to have an order, and it is up to a judge to decide if it is appropriate in such a case to have an order or not. Am I misreading the provision? If it does apply, it would be one order taking into consideration the wishes of witnesses and complainants.
Mr. Taylor: Yes, the objective here with the language of “wishes,” as Senator Busson was articulating, is to really do that check-in. One of the issues around the language of consent, conceivably, could relate to, for example, a child victim or witness, and what does consent mean in that context?
One would hope common sense would prevail in terms of the way these provisions would be interpreted, and, really, the objective here is to require the judge to inquire, to obtain the wishes, to — and that if the victim or witness does not want a publication ban to be imposed, that it would not be imposed.
I think it was you, Senator Dalphond, who talked about — or, sorry, Senator Dupuis — the way that all of the amendments build on one another, and that’s really the objective here is to inject into the system, at all stages, at different places, a marker where the system has to check in with the victim and confirm their wishes, and if they agree, to proceed, and if they don’t agree, not to proceed.
[Translation]
Senator Boisvenu: My question is for Mr. Taylor. If we use the word “consent” rather than “wish,” does this have the effect of reinforcing the victim’s right to participate in the issuance or non-issuance of an order in the process?
I am referring to the Canadian Victims Bill of Rights, which talks about the right to information. This bill strengthens that right as well as the right to participation. If we use the word “consent” instead of “wish,” doesn’t that reinforce the victim’s right to participate more actively in the process?
[English]
Mr. Taylor: Certainly the right to information, as you know well, Senator Boisvenu, applies and is used to inform and interpret all federal statutes and, most notably, the criminal law.
As to whether changing the word from “wish” to “consent” gives greater effect to that right, I don’t know. I don’t think it does, respectfully. The objective here is the same. The objective is to require the system to obtain the views of the victim. If the victim does not want the publication ban, then the publication ban should not be imposed. If the publication ban has been imposed, and they want it revoked, then in virtually all cases it will be revoked.
[Translation]
Senator Boisvenu: If the victim doesn’t wish it, they won’t consent to it. If the victim wishes it, they will consent.
Mr. Taylor: Exactly. That’s why I explained that I wasn’t sure there was a real difference.
Senator Boisvenu: Does the use of the word “consent” further reinforce that right for the victim?
[English]
Mr. Taylor: Again, from my perspective, they get to the same place. I’ll just reiterate what I said previously. The only point is the question around whether consent injects some additional complexity vis-à-vis child victims or witnesses. I honestly cannot say definitively how the courts would apply that or interpret it. The objective is the same.
The Chair: May I ask a question? We heard a fair amount of evidence about the idea that victims should be able to consent to the issues around publication bans. We had language that started at “consult.” Then we worked our way up to “wishes.” With the greatest respect, “consent” seems to be a richer statement than expressing your wishes.
My question though is: If we did have that phrase here, does that then, in a way, compel the judge to follow that course of action, or would we still see legitimate concern on the part of judges be able to be exercised to say, notwithstanding your consent, privacy interests of some people may be jeopardized here and, therefore, I’m not going to follow that consent-based expectation of the victim? I don’t know on that. I am sympathetic to the consent concept as opposed to the softness of “wishes” and even the softness of “consultation.”
We hear people’s wishes get taken into account like the duty to consult but, sometimes, thank you; we consulted and we’re not doing what you said. This is a question of agency. The minister talked about agency. We have talked about agency. Wishes don’t seem to be all that much agency, if I can put it that way. I do worry about whether consent starts to require the dismissal of other factors that a judge might need to consider. Thoughts on that, Mr. Taylor?
Mr. Taylor: It depends on the stage of the process.
Right now, we’re looking at — if I understand correctly — the first stage of whether the victim or witness wishes to be subject to the order. If the victim is present and they are asked the question, and the question is, “Do you wish to be subject to a publication ban?” And the victim responds, “I agree. I would like to be subject to the publication ban” or, “Yes, I wish to be subject to the publication ban” or, “Yes, I consent to being subject to the publication ban,” again, the objective is the same.
Where it changes, perhaps — and this is where one might want to think about consistency in terminology — is, as you said, Senator Cotter, later on. The publication ban is in place, and the victim wishes or requests it to be revoked and there is that very limited residual space carved out for the court to say, “We appreciate your wishes and perspective, but the reason why we cannot lift this publication ban in these circumstances is that doing so would infringe upon the privacy interests and the autonomy of another victim who wishes to be protected.”
The Chair: Thank you.
[Translation]
Senator Dupuis: Mr. Taylor, to follow up on Senator Cotter’s question, in that sense, whether we choose to say that the victim wishes it or consents to it, in any case, wouldn’t the court will still have the discretion to make the order or not, based on the assessment of other criteria that the court must consider in this type of situation?
[English]
Mr. Taylor: At the front-end stage when the order is being made for the first time, the only consideration is whether the victim or witness wishes the order to be made. There is no balancing of interests in terms of other victims or other witnesses.
The law today and the law as it would be amended, if Bill S-12 were to pass, would be that, in these cases, sexual offences, all adult victims, child victims and child witnesses, if they want the publication ban, it is imposed.
[Translation]
Senator Dupuis: If they don’t want it, the court can decide to impose it anyway, given the circumstances that are before the court?
Mr. Taylor: I don’t think so.
[English]
The court can impose in those circumstances, because the publication ban is for the victim or the witness.
Senator Dupuis: Or the witness.
Mr. Taylor: Or the witness.
[Translation]
Senator Dupuis: If the two do not agree, if the witness and victim disagree, if one wants publication, but the other doesn’t —
[English]
Mr. Taylor: If one wishes, then that individual receives the publication ban. If one does not wish, they do not receive the publication ban. At that front-end stage, one is allowed and one does not have to. It really is about agency at that front end.
[Translation]
Senator Dalphond: I just have a question of clarification. In the original text, you had two provisions. One was subsection (3.1), which is on page 2 and concerns only the victim, for whom an order can be issued, because the victim wishes or requests it. Then you had another provision, subsection 486.5(1), which applied to the victim and witnesses. I understand that this provision will be replaced in an amendment that will follow. The general principle is that, in what is being proposed, both the victim and the witnesses will be included in the same provision, whereas they were previously in two different provisions? If we use the word “consent,” you’ve made it clear that we could have an order prohibiting disclosure of the witness’s identity, but allowing disclosure of the victim’s identity?
Mr. Taylor: That’s right.
Senator Dalphond: Okay. I understand.
[English]
The Chair: Can we invite a vote on this?
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chair: Senator Boisvenu, were you proposing a subamendment to this provision? Or you and I were sympathetically debating a point?
[Translation]
Senator Boisvenu: If the amendment contained only paragraph (a), I would feel comfortable dropping it. My problem is with paragraph (b), because the victims are missing. That’s where the notion of wish is inferior. An overworked prosecutor could presume the wishes of the victims. The notion of consent in paragraph (b) would require communication with the victim.
It’s paragraph (b) that really bothers me. Victims have often told us that they are not present in the proceedings and learn after the fact that there has been an order. That’s why the notion of wish in paragraph (b) seems too timid to me and doesn’t require establishing communication with the victim, whereas consent would require establishing communication.
[English]
The Chair: Are you interested in articulating a subamendment that you would like us to vote here?
[Translation]
Senator Dupuis: May I ask the senator a question before he decides to introduce a subamendment?
Senator Boisvenu, does replacing “wish” with “consent” in paragraph (b) really change anything in terms of the meaning?
If we read paragraph (b), the judge is required, if the victim or witnesses are not present, “… shall inquire of the prosecutor.” If the Crown prosecutor, before applying for a publication order, has determined whether the victim or witnesses, say, even consent to being the subject of an order… in other words, the only question he is asking is: “Have you determined whether people agree or disagree, or whether they want to be subject to an order?”
I’m not sure that changing the word “wish” to “consent” is going to make much difference, because he’s just going to check and say, “Have you determined whether they agree or not, or have you determined whether they wished to?”
Senator Boisvenu: I’m not an expert.
Senator Dupuis: It’s just a matter of fact that he has to check.
Senator Boisvenu: I understand that, but for me, the concept of consent involves communication with the victim, which isn’t the case with the word “wish.”
Senator Dupuis: That’s exactly what I’m not sure about.
In fact, at the very least, the Crown attorney had to phone and find time to be replaced in two cases he didn’t have time for, and to confirm before the judge that he had established whether the witnesses or the victim wished or consented. That’s why I say it’s pretty much the same as saying, “be subject to.” The obligation is to contact, to find the person and establish communication.
[English]
The Chair: I think we have probably debated the issue; the question, Senator Boisvenu, is whether you want to move an amendment to inject consent into (a) and (b) in the locations you identified. Or have we had a good —
Senator Boisvenu: No.
The Chair: No, okay.
Senator Boisvenu: No, I just put the question on the floor.
The Chair: Good. I’m —
Senator Boisvenu: They don’t seem to agree, it seems.
The Chair: The chair was sympathetic.
We are now on S-12-2-2-12, as amended by Senator Pate’s motion on the subamendment earlier. So, I’m now going to call the question. Is it your pleasure, honourable senators, to adopt the motion in amendment, as amended?
Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Carried, on division.
That now takes us to Senator Busson’s S-12-2-2-14.
Senator Busson: Unless I’m mistaken, I think this amendment has been subsumed by the amendment by Senator Pate, or has it not?
The Chair: I think they can both pass and be part of the amended bill.
Senator Busson: That’s even better, thank you.
This amendment is BB S-12-2-2-14. I move:
That Bill S-12 be amended in clause 2, on page 2, by adding the following after line 14:
“(5) Section 486.4 of the Act is amended by adding the following after subsection (4):
Limitation — victim or witness
(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public.”.
I think we generally had the discussion on intent in the past, and my amendment just makes that clear. It offers an off-ramp in situations where it was either accidental or mistaken that the witness or the victim disclosed something that was subject to a publication ban.
The Chair: Thank you. I think we have largely debated this, so I’m hoping the discussion will be brief. Senator Pate, you do have an intervention, I believe.
Senator Pate: I think this is a further subamendment and it — oh, it does, yes. Never mind. That’s fine. Thank you. I vote in favour.
The Chair: Okay.
Is it your pleasure honourable senators to adopt the motion, in amendment?
Hon. Senators: Agreed.
The Chair: Thank you.
That takes us to the end of clause 2, senators. I’m going to invite the question:
Shall clause 2, as amended, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Now we’re going to clause 3. Shall clause 3 carry?
This will be a little more engaged. Senator Pate has an amendment, S-12-3-2-35. You will recall that this is a kind of a knock-on amendment to the earlier discussion we had with respect to 2-2-14.
Senator Pate: That’s right. This is KP S-12-3-2-35. As the chair has pointed out, this is the second of three related amendments to prevent the criminalization of those who might potentially breach non-publication orders by disclosing their own information without intentionally or reckless revealing the identity of others, as again recommended by the women’s groups. It proposes the identical wording to my earlier amendment, but that it be added to section —
The Chair: This is something you might want to read, because we have it in writing, but the thousands who are watching might want to know the content of it.
Senator Pate: It’s identical wording, but I will read it out again. Thank you. I move:
That Bill S-12 be amended in clause 3, on page 2,
(a) by replacing line 15 with the following:
“3 (1) Subsections 486.5(1) to (3) of the Act are”;
(b) by adding the following after line 35:
“(3) An order made under this section does not apply in either of the following circumstances:
(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or
(b) the disclosure of information is made by a person who is subject to the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by that order.”.
The Chair: Thank you, Senator Pate. We will see a similar pattern, I think, to the amendment we considered in 2-2-14 a short while ago.
Mr. Palmer: There was a subamendment circulated, so in theory, we should do Senator Busson’s BB S-12-3-2-15(a). Then the subamendment that we circulated should be subamended to that.
The Chair: Is it acceptable for now that we just hold in suspension Senator Pate’s amendment and turn to Senator Busson? This is BB S-12-3-2-15(a).
Senator Busson: Thank you, Mr. Chair.
I move: That Bill S-12 be amended in clause 3,
(a) on page 2, by replacing lines 15 to 38 with the following:
“3(1) Section 486.5 of the Act is amended by adding the following after subsection (3):
Limitation — victim, etc.
(3.1) An order made under this section does not apply in respect of the disclosure of information by the victim, witness or justice system participant when it is not the purpose of the disclosure to make the information known to the public.
(2) Section 486.5 of the Act is amended by adding the following after subsection (5):
Duties — judge or justice
(5.1) If the prosecutor makes an application for an order under subsection (1) or (2), the judge or justice shall
(a) if the victim, witness or justice system participant is present, inquire of them if they wish to be the subject of the order;
(b) if the victim, witness or justice system participant is not present, inquire of the prosecutor if, before the application was made, they determined whether the victim, witness or justice system wishes to be the subject of the order; and
(c) in any event, advise the prosecutor of their duty under subsection (8.2).
(3) Section 486.5 of the Act is amended by adding the following after subsection (8):
Supplementary duty — judge or justice
(8.1) If an order is made, the judge or justice shall, as soon as feasible, inform the victims, witnesses and justice system participants who are the subject of that order of its existence and of their right to apply to revoke or vary it.
Duty to inform
(8.2) If the prosecutor makes the application, they shall, as soon as feasible after the judge or justice makes the order, inform the judge or justice that they have
(a) informed the victims, witnesses and justice system participants who are the subject of the order of its existence;
(b) determined whether they wish to be the subject of the order; and
(c) informed them of their right to apply to revoke or vary the order.”;
(b) on page 3, by deleting lines 1 to 4.
This is another part of Bill S-12 that deals with bans and does almost exactly the same thing that we dealt with before. It adds “justice system participants” to this section, which was not part of the previous amendments.
I’ll ask Mr. Taylor to explain in such circumstances where justices and participants would be affected.
Mr. Taylor: Sure. Thank you for the question. In addition to what Senator Busson has said, the other changes that this motion would make to clause 486.5 relate to the removal of the language of “otherwise made available,” that I believe Senator Simons’ amendment addressed in 486.4. This would do so in 486.5.
Clause 486.5 is the discretionary publication ban provision and applies to victims for all other offences, non-sexual offences and witnesses in those cases. It also applies to justice system participants in respect of specific proceedings, organized crime cases and national security cases. The policy objective for that is obvious when prosecutors, jurors and judges in high-profile cases may have concerns for their safety, the Criminal Code allows for a publication ban to protect them as well as victims and witnesses.
If I might add — and Senator Busson, your pause caused me to see it as well. If I could just point out, there is a word missing in the English version of this motion, and it’s in proposed paragraph 5.1(b) on the top of page 2. The second-last line of the English says, “system wishes.” There should be “participant” after “system.” If you look at the French —
[Translation]
— it talks about a justice system participant —
[English]
— that was a missing word that should have been there. I just draw that to your attention. Thank you.
The Chair: Thank you, Mr. Taylor. Senator Pate, there is a subamendment to this that is initiated by you. Just to bring it to the attention of committee members, I might invite you to introduce it.
Senator Pate: The subamendment to the —
The Chair: Subamendment to this 15 that Senator Busson is presently speaking to. If you have a list beside you, it’s number 9(a) on the list, KP-SUB-BB-S12-3-2-15a. It has been redrafted on an individual sheet of paper you may have.
Senator Pate: That’s a different one.
Mr. Palmer: It’s “a.”
The Chair: It’s short, about half a page or so, a little less.
Senator Pate: I move:
That the motion in amendment be amended by adding the following after the word “existence” in proposed paragraph (8.2)(a):
“, its effects and the circumstances in which they may disclose information that is subject to the order without failing to comply with the order”.
The Chair: This is pretty much identical to the earlier one that we discussed.
Senator Pate: These are both consequential.
Senator Dalphond: What is the number again?
The Chair: KP-SUB-BB-S12-3-2-15a. It’s on a single sheet, Senator Dalphond.
Senator Pate: There are two, 8 and 9. They’re both subamendments.
The Chair: I’ll just wait for a moment to ensure that people have the subamendment.
Senator Batters: Isn’t this the one that Senator Pate started out reading when we were first talking about this and then switched over to that Busson amendment and now we’re just back to that? It’s not a brand-new one.
Mr. Palmer: Yes. And just to clarify, Senator Pate will have two subamendments to this Senator Busson subamendment. There will be two subamendments, this one being KP-SUB-BB-S12-3-2-15a. Then there is another subamendment once we finish dealing with the one that ends with “aa,” which is the longer one. We are currently on the one finishing with “a.”
Senator Dalphond: Do you have a copy for me?
The Chair: To the earlier amendments and subamendments. I think we have to make sure that people have copies of the orders, Senator Simons.
Senator Pate: Just to be really clear, as Senator Cotter and Senator Simons have said, these are consequential to the first subamendment made, so it just follows along with wording changes.
The Chair: I think everybody now has 15a. Senator Pate, do you want to say more about it, or has the ground been covered?
Senator Pate: I think because we passed the other ones, it’s just consequential that these would pass as well.
The Chair: Right. Just wanted to give some of our colleagues the chance to read it.
Seeing no further interventions, is it your pleasure, honourable senators, to adopt the motion in subamendment?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: On division. Thank you. That takes us now to KP‑SUB-BB-S12-3-2-15aa, another subamendment presented by Senator Pate.
Senator Pate: This is another consequential amendment. I move:
That the motion in amendment be amended by replacing “3 (1) Section 486.5 of the Act is amended by adding the following after subsection (3):” with
“3 (1) Subsection 486.5(3) is replaced with the following:
(3) An order made under this section does not apply in either of the following circumstances:
(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or
(b) the disclosure of information is made by a person who is subject to the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by that order.”.
So it is the same wording as the previous.
The Chair: Thank you. And is it the same argument as the previous?
Senator Pate: Same argument.
The Chair: We have had a discussion about this provision already in a different location but to achieve the same objective. Hearing no further discussion on this, is it your pleasure, honourable senators, to adopt the motion in subamendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Motion passes on division.
We’re back to Senator Busson’s amendment. Just as a reminder, it was discussion or further discussion with respect to 15(a).
Senator Busson: For clarification, I think our friend Mr. Taylor did a great job of explaining this amendment, but particularly, it specifies protections for justice system participants who would be undercover agents, people with national security interests and those sorts of things.
The Chair: Are there any further comments from senators or questions? Hearing none, let me invite a consideration of this. Is it your pleasure, honourable senators, to adopt the motion in amendment as amended?
Hon. Senators: Agreed.
The Chair: Carried. This takes us to the end of clause 3. Shall clause 3 as amended carry?
Hon. Senators: Agreed.
The Chair: Clause 3 carries. Shall clause 4 carry?
Senator Busson, I think there was an amendment under consideration with respect to clause 4. This is BB-S12-4-3-7.
Senator Busson: I move:
That Bill S-12 be amended in clause 4, on page 3, by replacing lines 7 to 17 with the following:
“Application — vary or revoke
486.51 (1) If a person who is the subject of an order made under section 486.4 or 486.5 requests that the prosecutor have it varied or revoked, the prosecutor shall, as soon as feasible, make an application to vary or revoke the order on their behalf.
Order — vary or revoke
(2) If an application to vary or revoke an order made under section 486.4 or 486.5 is made by the person who is the subject of the order or by any other person, including a prosecutor, who is acting on their behalf, the court that made the order or, if that court is for any reason unable to act, another court of equivalent jurisdiction in the same province shall, without holding a hearing, vary or revoke the order, unless the court is of the opinion that to do so may affect the privacy interests of any other person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person.
Hearing
(3) If the court is of the opinion that varying or revoking the order that is the subject of an application referred to in subsection (2) may affect the privacy interests of any other person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person, the court shall hold a hearing to determine whether the order should be varied or revoked.
Factor
(4) In order to determine whether the order should be varied, the court shall take into account whether it is possible to do so in a manner that protects the privacy interests of any other person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person.
Notice
(5) The applicant is not required to provide notice of the application to vary or revoke the order to the accused.
Submissions
(6) The accused shall not be permitted to make submissions in relation to the application.
Notice of change
(7) If the order is varied or revoked, the prosecutor shall notify the accused.”.
To hopefully add some clarification to that amendment, the proposed amendment would address the concern in Bill S-12 as introduced that did not facilitate revocation or varying of the order upon the request of the person whose identity was protected by them in particular, where doing so would compromise the interests of another person. This amendment is directed at clarifying that process.
These amendments also address the concern that the accused should not be able to make submissions at the revocation or variance hearing, in particular given that the accused currently has no standing at such hearings. Of course, the entire intent of this publication ban being for the benefit of the victim. Specifically, this would amend the act to make sure that prosecutors apply for revocation and variation on behalf of the person whose identity is protected by 486.4 and 486.5 when asked to do so and the courts ordered the revocation without holding a hearing upon the request of the person whose identity would be made representative.
It is also important to note that the applicant is not required to give notice to the accused. The accused is not permitted to make submission at the hearing, and if the order is varied or revoked, the prosecutor notifies the accused of that fact.
The Chair: Thank you, Senator Busson. With respect to this amendment, there is a subamendment about to be proposed by Senator Simons. I thought it would be helpful if I could locate it on the page for you and turn it over to Senator Simons. You have 7, and then you have Senator Simons’ subamendment on one page. The subamendment applies to essentially the third-last line in 486.51(2), the third-last line. It’s not located on the language of the amendment line-wise, but that would help you to locate the proposed amendment. I’m going to now turn it over to Senator Simons. This is PS-SUB-BB-S12-4-3-7. I think you all have only received it, a short time ago. It is only newly developed and one third page long.
Senator Simons: I very much support the spirit and the intention of the government’s amendment, and I thank Senator Busson for bringing it to us at this early date.
The Chair: Could you read it?
Senator Simons: I will now make my subamendment, which I think I need to make a small change as I go. I’m going to read the subamendment. I move:
That the motion in amendment be amended in proposed subsections 486.51(2) and (3) by replacing “the privacy interests of any other person” with “the privacy interests of any person other than the accused”.
It seems to me that the intention of this motion is to make sure that the accused does not have the right to intervene in one of these applications. It has been my experience as a journalist covering trials that often the identity of the accused is protected in the publication ban in such cases, as identifying the accused would serve to identify the victim. These are usually in cases of family assault, whether it is a partner sexually assaulting a spouse or an ex or, more horrifically, when it’s cases of incest or the assault of step-children. I have known it very often to be the case that you cannot name by court order the accused because doing so would serve to identify the victim.
My concern is if the victim is to seek a variance or a revocation that I don’t want, in any way, the accused to have standing to challenge that. I think my subamendment fits with the spirit and intent of the government’s amendment. My apologies for having brought this late to the table. I realize on reflection that I not only need to amend it in clause 2, but also in clause 3 in the hearing section.
The Chair: If you are following along with respect to Senator Busson’s amendment, the other location for this would be the fourth line of subsection 3 — fourth and fifth line — “may affect the privacy interests of any other person other than the accused” I think is a fair way of capturing it in both locations in this amendment.
Could I say a small amount of I think it’s clarification, Senator Simons? The concern is not so much about standing, because that’s wiped out here, but it is that the accused person’s privacy interests ought not to be a factor in the decision process.
Senator Simons: Precisely. They should not be privileged.
The Chair: Is that a fair way of describing it?
Senator Simons: Yes.
The Chair: We’re discussing the subamendment now. Are there any comments, concerns or viewpoints to be expressed here?
Senator Simons: Mr. Taylor, do you have concerns about the subamendment?
Mr. Taylor: I don’t have the text in front of me, but I think I understand it, senator. I guess two things I would say three things. Thank you for sharing a copy.
I think I understand the objective, and I think Senator Cotter explained it well. Maybe I can flip it by trying to articulate what the motion does, as I understand it. It’s really directing the court to consider the interests of another victim or another witness who is protected by a publication ban. The sections 486.4 and 486.5, as I understand them, do not operate to allow an accused to be the beneficiary of an order under 486.4 or 486.5. In the way that the text is drafted, they speak very clearly to victims or witnesses.
So my understanding is that to the extent that an accused person is protected by a publication ban, it is not by virtue of a publication ban being imposed in their name, but rather as a consequence of a publication ban being imposed in the name of a victim or a witness. I would say that as context. I guess the question I would put to you for consideration, looking at your motion, it seems to lose the text of any other person who is the subject of any order prohibiting the publication in any document.
Senator Simons: The amendment is to say, “may affect the privacy interests of any other person, other than the accused, who is the subject.”
Mr. Taylor: Okay. And then it continues on.
Senator Simons: My concern is about the phrase, “the privacy interests of any other person.” That doesn’t specify a secondary victim or a witness. It says “any other person.”
Mr. Taylor: To the extent that this change really makes clear who you’re interested in protecting their privacy interests, it makes crystal clear that the privacy interests of the accused, are not relevant in this determination. Whether, in practice, an accused is ever the recipient of a publication ban under 486.4 or 486.5 is another question. But if they are, then this provision makes clear it doesn’t matter.
Senator Simons: This doesn’t just speak to publication bans. It says “privacy interests of any other person.” It seems to me that a commonsense interpretation of “privacy interests” would be somebody whose name has been protected even if it’s a secondary penumbra.
Mr. Taylor: That’s a very fair interpretation. I just point to the text of “a person who is the subject of an order” and whether the accused is somebody who is the subject of an order. I don’t know, in practice, whether they are. As I said, I think it’s more a consequence of a publication ban being imposed in respect of a victim or a witness. That’s the context I can provide.
Senator Simons: I have covered cases where there is a publication ban specifically on the name of the accused —
The Chair: Thank you, Senator Simons. I’m trying to keep it out of being a debate.
[Translation]
Senator Dupuis: When we look at the amendment that was put forward by Senator Busson, we come to “Application — vary or revoke.” There was a publication ban in favour of a victim, or several victims, or witnesses, or victims, or victims and witnesses.
So in the proposed amendment we’re looking at, in subsection (2), where it says, “… is made by the person who is the subject of the order or by any other person…” implies that we are talking about people who are victims or witnesses, if I understand correctly?
I see that you are nodding to say yes? Okay.
Mr. Taylor: Yes, exactly.
Senator Dupuis: The meeting is still being recorded, in principle; we can’t necessarily see you. Thank you very much for confirming that.
At this point, if we add “other than the accused,” aren’t we adding an additional source of inquiry? Why does the accused appear here in this paragraph, where we are talking about people for whom the publication ban was issued?
In other words, we are talking about protecting people who are seeking to revoke or vary the application. They are protected. So, we’re not talking about the accused at all. However, at the end, in subsection (5), it specifies that the accused does not receive the notice, and in paragraph 6(d), it states that the accused cannot present arguments in relation to the request. What does this add?
In law, it is said that the legislator does not speak for the sake of speaking. What concerns me is that if we add something, is there a good reason for doing so? By adding anything that doesn’t need to be there, don’t we run the risk of making people wonder what we meant, when it seems so clear in subsections (5) and (6)?
[English]
Mr. Taylor: Certainly, the objective of the government motion here is to supercharge what was in the bill, as introduced, is very clear in terms of the process by which a victim, witness or justice system participant can seek to revoke or vary a publication ban made in their name. The starting point with these proposed motions is that where the victim, witness or justice system participant wishes to have the publication ban lifted or varied, absent any other competing privacy interests for somebody else who is subject to a publication ban, the publication ban will be lifted or varied.
The goal here is to take into consideration the testimony that was provided around the need to be clearer in respecting the autonomy of the person subject to the publication ban. There is this residual category of circumstances where it still may well be the case that a publication ban could be rescinded or varied even where other privacy interests at stake. But the point is that it is a difficult case, and we have different autonomy interests and multiple victims, and the importance of respecting both requires a closer look.
The last thing I would say, again, just going back to 486.4 and 486.5 as drafted, is that the wording of the statutes themselves are limited to victims, witnesses and justice system participants, and those are the individuals who are the beneficiaries of publication bans under those provisions.
Senator Dalphond: Along the same lines — because the more I think about it, the more I’m concerned, I think, because the proposed paragraph will read:
Unless the court is of the opinion that to do so may affect the privacy interests of any other person other than an accused,
So that recognizes that the accused has a privacy interest because the whole sentence is about the privacy interest. You say all those who have a privacy interest except the accused. Now we’re trying to maybe — a good lawyer for the accused might say that [Technical difficulties] Parliament is recognizing that my client has a privacy interest, and that other section should be read that I have a privacy interest, and therefore it should be read that way. I’m really concerned about that. Quite frankly, I’ve read so many bills before, but — as Senator Dupuis mentioned before — if these words are added, it’s because there was a privacy interest, and it’s excluded because there was one first. If there’s none, you don’t exclude nil, you exclude only something that exists.
The more I think about it, the more I think it is a source of problems.
The Chair: I’m going to recognize myself on this point, if I may.
If I understand it correctly, if a publication ban is ordered that requires the victims and witnesses to adhere to it, it seems to me it also requires the accused to adhere to it. Am I right about that? Okay. So that surely means that the people who are subject to the publication ban include the accused. When you read the phrase here, what you get is that the court has to take this into account because it may affect the privacy interests of any other person who is the subject of any order, et cetera. This would, in its kind of natural understanding — since the accused is subject to the order — be an argument that says that person’s privacy interests are at play. So it is important to exclude those privacy interests when the judge is giving this consideration.
Our point here is that there may be privacy interests of the accused because the accused is subject to the order, but they have no business being considered here. I think that’s the line of argument of Senator Simons.
Senator Dalphond: I’m tempted to say we might be causing confusion by following such an argument to confuse tending versus privacy interest. I think an accused has no privacy interests. The charter says he’s entitled to a public hearing. So it’s not the privacy interest. It’s the contrary. The charter says it has to be public, and he has no right to have his name not be published except if there is a publication ban in order to protect the victim, children or a witness, for example — that could be the children — and for that very reason his name won’t be published. It’s not to protect his privacy interests. It’s to protect the privacy interests of the child or the victim.
Senator Busson: With all due respect, I think in this situation, we want to talk about being subject to a publication ban. The CBC or a newspaper would be subject to the ban, but they don’t have an interest. I think you can make that differentiation without — as Senator Dalphond was saying — making the quantum leap that because they’re subject, they don’t necessarily have a privacy interest that would be recognized.
The Chair: Are there any other comments?
[Translation]
Senator Dupuis: I am looking for definitions in the dictionary. I have a question for Mr. Taylor. If we look at the government’s proposal put forward by Senator Busson, in the section dealing with the request to revoke or vary, so in subsection 486.51(1), it says, “If a person who is the subject of an order ....” Do we agree that this refers to the victim? So it isn’t the accused who is the subject of the order, but the victim.
We have to be careful not to confuse the people covered by a publication ban with the people who are subject to it. In this case, if I understand correctly, the accused are covered by the order, the media are covered by the order, but the person who is the subject of the order is the person who is the victim.
In that sense, I don’t want to add any anxiety to your responsibilities as chair, Senator Cotter, but it seems to me that the two shouldn’t be confused. If you are the subject of a publication ban, you are necessarily a victim, a witness or a justice system participant; you cannot be the accused, as far as I understand from Mr. Taylor’s answer.
[English]
The Chair: Shall we vote on the subamendment then? This is Senator Simons’ subamendment.
Is it your pleasure, honourable senators, to adopt the motion in subamendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I think this invites a roll call. This is with respect to Senator Simons’ subamendment.
Mr. Palmer: On the subamendment —
The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Busson?
Senator Busson: No.
Mr. Palmer: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: No.
Mr. Palmer: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Palmer: The Honourable Senator Patterson, Nunavut?
Senator D. Patterson: No.
Mr. Palmer: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Palmer: Yes, 6; No, 4.
The Chair: I declare the motion on subamendment carried.
We now turn to the amendment of Senator Busson. Is there additional discussion on this question? Hearing none, is it your pleasure, honourable senators, to adopt the motion in amendment as amended?
Hon. Senators: Agreed.
The Chair: Carried.
The Chair: Does 4 carry as amended? Agreed, thank you.
Now we go to clause 5. Shall clause 5 carry? We have an amendment here — Senator Busson.
Senator Busson: Mr. Chair, I will proceed to read it. The number is BB-S12-5-3-18.
That Bill S-12 be amended in clause 5, on page 3, by replacing lines 18 to 26 with the following:
“5 Section 486.6 of the Act is amended by adding the following after subsection (1):
Prosecution — limitation
(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,
(a) the person knowingly failed to comply with the order;
(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any docu- ment or the broadcasting or transmission in any way of information that could identify that person have been com- promised; and
(c) a warning to the individual is not appropriate.”.
For clarification, I’ll just say that, again, the first part that we have discussed in previous clauses in this bill talks about “otherwise making available,” and that is covered again in this, as it has been removed. Also, it responds to the concerns about criminalizing victims for contravening publication bans imposed to protect their identity. In these cases, they may only be prosecuted for knowingly contravening the ban and knowingly compromising the privacy interests of another person, and the warning would not be appropriate. That would be the only circumstances where a prosecutor would proceed.
The Chair: Thank you, Senator Busson. I think Mr. Taylor made reference to this provision as part of the package in terms of trying to moderate the risk of prosecution.
Senator Pate: The question here is that it actually seems to weaken some of the other provisions around not criminalizing the victims. I’m curious as to whether there is a definition somewhere that I have missed about who would make the decision. I’m presuming it’s the prosecutor, but I think it still leaves open the possibility of the Crown proceeding with charges against the victim.
Senator Busson: The prosecutor. It says, “The prosecutor shall not commence or continue a prosecution.”
Senator Pate: So it’s the prosecutor.
The Chair: Senator Simons, were you wanting to intervene?
Senator Simons: Yes. I have a question for Mr. Taylor. When I was speaking earlier today with media lawyers whom I know well from my past, they wanted me to ask you what is a compromised privacy interest? In the email they sent me, they indicated that it seems as if a prosecutor may or may not consider a person’s privacy interest to be compromised if a person, entity, media outlet, library, et cetera, would illegally publish identifying information prior to the imposition of a publication ban.
I just wanted to understand what this means.
Mr. Taylor: Thank you for the question. I would suggest that this amendment be read in conjunction with the other changes that have been proposed and I think adopted by your committee.
The first point to note is that this provision only applies with respect to somebody who is the subject of the publication ban, so the individual themselves has a publication ban that their name and identifying information cannot be published. Again, it doesn’t apply to the media, to the public generally, or to anyone but the person who is the beneficiary of the publication ban.
The goal here is really about saying that, even where there is a breach, or an alleged breach to be fair, there are competing interests that have to be weighed. Here, with paragraph (b), it’s really about, did the breach lead to the identification of somebody else or put that in jeopardy? Did it impact upon the privacy interests of another person? That’s what the prosecutor is asked to weigh in those circumstances.
However, even if it did, with paragraph (c), there is still the requirement that the prosecutor consider whether a warning is or is not appropriate. So really, here it’s about — and we talked about this last week — balancing all of those different interests; that is, the autonomy of the victim, respect for court orders and then public interest considerations around prosecution. I hope that helps.
The Chair: Other comments and viewpoints on this? Hearing none, let me see if we are able to take give consideration to this.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: That deals with clause 5. Shall clause 5, as amended, carry?
Hon. Senators: Agreed.
The Chair: Thank you.
Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry? Senator Boisvenu, you have a proposed amendment here?
[Translation]
Senator Boisvenu: Esteemed colleagues, you know my main mission in life is to protect women from aggressors. This amendment is a step in that direction. I will present my amendment and make my argument afterwards. I therefore move:
That Bill S-12 be amended in clause 7, on page 8, by replacing line 13 with the following:
“age of 18 years or is a woman.”.
This concerns the requirement to be a registered sex offender. The bill provides for automatic registration when the victim is a minor, but those are the only cases. In all other situations, registration is optional.
What I’m proposing, as when the victim is a minor, is that registration become mandatory for sentences of two years or more. I apply the same principle to women when they are assaulted if the sentence is two years or more. You will understand that when a sentence is two years or more, it means the assault was serious or very serious.
I essentially base my argument on some very disturbing data. In 2021, 87% of sexual assault victims were women, compared to 81% in 2005. The majority of sexual assaults are committed against women between the ages of 15 and 24. This means that, for a woman who is assaulted at age 17 and 364 days, registration will be automatic. If she is 17 and 365 days old, or 18, registration is no longer automatic, which I find absurd. I feel registration should be mandatory.
It’s also disturbing that the sexual assault rate among Indigenous women is three times higher than it is for non‑Indigenous women. Not necessarily registering offenders is a sign of normalization. Offenders who receive sentences of two years or more for assaulting women are violent, and registration sends the message that it’s a serious crime. We need to protect women; police officers say it’s a very important crime prevention tool, especially for sexual assault. That’s why I’m moving this amendment. Thank you.
[English]
Senator Dalphond: If I understand properly, the first element is that it has to be a designated offence, and a designated offence is a primary offence and a secondary offence. It’s the list we find later, correct? Okay. If it’s such a list, now it will apply only to what we’ll call non-adult victims; that is, those less than 18 years old.
If we were to focus on that group here, where automatic registration is done, do you have any idea of how many cases it represents per year? If you add to this list all women, who are mostly the victims of sexual offences, at 85%, we then move from a group of what size to a group of a much larger size. Of those left, what will not be covered compared to the list? The Supreme Court says your net is too broad; you have to narrow the net. This amendment will obviously enlarge the net, but what will be automatic? What would that number be — a small portion of the overall crimes or half of the overall crimes? Are we broadening the net so much that we are back to the Supreme Court with the same kind of expected judgment?
Joanna Wells, Acting Senior Counsel, Department of Justice Canada: I’m happy to provide value to this evening’s meeting.
The Chair: Thank you for 200 minutes, I think. The floor is yours.
Ms. Wells: I think, Senator Dalphond, you have raised some critical questions to be addressed around this proposed amendment. I don’t have statistics on the second part of your question in terms of whom it would bring in.
At the Department of Justice, we have looked back three years at cases that would fall into the criteria that are proposed in the bill. We have done a fairly comprehensive analysis. Of course, it’s possible that we have missed some, but there are over 100 cases in the last three years that would fall into this.
I think your instinct is correct that if that category were broadened so that automatic registration would include this criterion, and where the victim was also a woman, it would capture many more cases. I think the next question is: “What does the Supreme Court of Canada decision in R. v. Ndhlovu say about that potential broadening of the net?”
Senator Dalphond: Thank you.
[Translation]
Senator Dupuis: I have a question for Senator Boisvenu and another for Ms. Wells.
Senator Boisvenu, there’s a wording issue in the French version, and perhaps Mr. Taylor can help us. You are looking to add a reference that says if the offence was committed against a victim under 18 years of age, we either have a victim under 18 years of age or a victim who is a woman.
Senator Boisvenu: In cases where the sentence is two or more years.
Senator Dupuis: Yes, we’re keeping paragraphs (a) and (b). It’s just paragraph (c). It’s only a question of wording. To make it clear in the French version, I believe the French should read “against a victim who is under the age of 18 years or is a woman,” not “against a woman.”
Senator Boisvenu: Assault against a woman, yes.
Senator Dupuis: Yes.
Senator Boisvenu: May I respond?
Senator Dupuis: Yes.
Senator Boisvenu: For assaults against women, it must be understood that the majority, about two-thirds, of sentences are for less than two years, and the other third are sentences of two years or more. Consequently, this will not apply to all women who are assaulted, but to a relatively limited number of cases where the sexual assault is characterized by serious acts of violence. In these circumstances, sentences are longer than two years in most cases.
Senator Dupuis: My next question is for Ms. Wells. I understand that you have no statistics to show us this evening, but I’d like to give you the opportunity to pursue your reasoning. Once we say there will be more people, it’s pretty obvious. We’ve just created a new category, so there will be more people. The fact that it covers more people doesn’t seem to me to be a problem in itself. I’d like to understand the issue you see behind this addition, not only for victims under the age of 18, but also for women who are victims of someone sentenced to more than two years.
[English]
Ms. Wells: Thank you, senator, for the opportunity to clarify this.
I think the starting point of any discussion is the Supreme Court of Canada decision in the Ndhlovu case, which said the current approach to automatic registration of all sex offenders is too broad. They said Parliament cast too broad of a net, because it risked capturing people who posed no risk of reoffending.
I think what would be helpful for the committee to know is some of the policy reasons behind why automatic registration is proposed to be retained for repeat offenders and for these very serious cases when the victim is under 18.
“Repeat offenders” is probably self-explanatory, but these factors are based on static risk factors that we developed in consultation while engaging with the literature and in consultation with experts at Public Safety Canada. Repeat offenders pose an increased risk of recidivism at five to eight times higher than an individual with a criminal history that is not related. The government is of the view that that is a high enough risk that automatic registration is appropriate.
With respect to the child sex offences with a penalty of two years or more on an indictment, there is a constellation of factors that go into the justification for that automatic registration. In particular, there is evidence to suggest that targeting young children is a risk factor for recidivism. Serious offending, while not necessarily increasing the probability of reoffending, can signal that a reoffence will be equally serious or violent, and the other piece of this is the increased vulnerability of children and those under 18. It’s that constellation of three factors that have led to the proposal here for automatic registration.
One more thing, if I might, it’s important, I think, not to lose sight of the fact that what we’re speaking to here is automatic registration, but everybody else is subject to a presumption of registration that they will be required to rebut, including the individuals who would commit these serious violent offences when the victim is a woman. The regime attempts to take into account all of those elements but keep the automatic registration very narrow in light of the Supreme Court judgment.
[Translation]
Senator Dupuis: If we follow your reasoning, what data, what analysis has been done to say that the reasoning you just presented to us for victims under 18 does not apply to women, and why doesn’t it apply to women?
We have a data issue. What was your reasoning and on what basis did you come to say that there is a lower risk of recidivism, or whatever, in the case of women compared to what it is for people under 18? Do we have any data? Do you have any? Can you provide it for us?
[English]
Ms. Wells: If I understand the question, senator, you’re looking for data or the evidence that would support the automatic registration or data on —
[Translation]
Senator Dupuis: I’m interested in your reasoning and the thought process that led you to exclude women from paragraph (c), but include victims under the age of 18. I imagine there is a contrast in the elements, in the data and in the risk factors that led you to exclude victims who are women but include victims under 18?
[English]
Ms. Wells: The starting point for this initiative and the development of all of the policy was the Supreme Court decision. The Supreme Court decision made it very clear that the net was too broad, and the government was looking for a narrow avenue to make sure that the most serious offending conduct would continue to be subject to automatic registration but that everyone else would have an opportunity to make their case to a judge to rebut the presumption of registration.
In order to overcome the strength of the Supreme Court analysis, the view is that the approach to automatic registration must be narrow and targeted.
[Translation]
Senator Dupuis: Does that mean you exclude children under 18, who are indirect victims of their mother being killed? In paragraph (c), could we add that the offence was committed against an indirect victim — although it could be argued that they are a direct victim — because their mother was killed? In your thought process, was that included in the interpretation of the term “victim under the age of 18 years”?
Do we want to wait for a case to make it all the way to the Supreme Court to find out if the court will accept that children are really victims in these situations? This is starting to be well documented, at least outside the legal profession. I imagine it is in some legal circles as well. Have you considered that children whose mothers have been killed are victims, if they are under 18?
[English]
Ms. Wells: In that fact scenario that you have proposed, each offence would be considered on its own. Gratefully, I’m not sure that’s a fact scenario that arises very often, senator. We are certainly aware of one case where it has arisen. I wouldn’t want to presume what a court would do in that situation, but the risk posed by that individual would be considered by the courts under the rebuttable presumption if it didn’t fall within this narrow category.
[Translation]
Senator Dupuis: That’s not what I asked. I’m sorry to insist, Mr. Chair, but I’m going to let —
[English]
The Chair: Senator Dupuis, maybe I’ll come back to you. I just want to hear from a few others.
[Translation]
Senator Boisvenu: I don’t feel the amendment I’m proposing opens up mandatory universal registration.
The amendment targets a vulnerable group of Canadians: women. The proof is that, 9 times out of 10, women are the victims of sexual assault in Canada. When it comes to offenders, women and children are just as vulnerable to sexual assault. Ninety per cent of victims are women or children.
Here, we’re tackling a relatively narrow group of offenders, those sentenced to two years or more, who therefore have committed serious crimes. I believe that within this framework, it will match the Supreme Court’s interpretation, according to which we must register dangerous individuals who have committed serious crimes against a vulnerable segment of the population, in this case women — because 90% of the time, women are the victims of sexual assault.
[English]
Senator Batters: I have a couple of questions for Ms. Wells.
In one of your previous answers, or perhaps it was in your remarks about this issue, you said before that your statistics showed that Bill S-12, as drafted by the government, would have included over the last three years 100 cases of this type? Is that the correct number that I heard you say? If so, that seems like a very low number.
Ms. Wells: I’m looking to see if I can get the exact number. I think I said just over 100 in the last three years that would fit the criteria of automatic registration. We’re unable to determine how many would have gone on the registry based on the judicial discretion because, as you know, that would be up to the court.
The number of cases that would fit the criteria that are proposed in Bill S-12 for automatic registration; that is correct.
Senator Batters: How many cases were going on the automatic registration prior to this court case?
Ms. Wells: All of them.
Senator Batters: How many was that, approximately?
Ms. Wells: I believe I provided the data to you the last time I was here about the total number of offenders who are on the registry. Over 60,000 have been put on since its inception in 2004.
Senator Batters: And now all that will go on is approximately 100?
Ms. Wells: No. All that would go on through automatic registration is much lower. That is intended to respond to the Supreme Court of Canada decision that the current approach, where everybody who is convicted of a sex offence goes on, is unconstitutional. The other ones will go on through judicial discretion.
Senator Batters: I see what you’re saying, but to go from that huge number to 100 seems — do you think that could be limiting it to too small a number?
Ms. Wells: It’s the expectation that the rebuttable presumption will lead to a significant number of registrations. When there was judicial discretion, in the cases where the prosecutor asked for registration, the evidence presented was that in 90% of the cases, offenders went on the registry. It’s not expected that the addition of judicial discretion will lead to a significant reduction in the number of people that go on, but it certainly will not be everybody.
Senator Batters: One further question. Another part of this is that the offence has to be for a sentence of two years or more, plus that offender’s situation has to have proceeded by indictment. I’m sure that it’s not a huge number, but it’s probably also not zero. What is the number of cases in the last few years when someone received a two-year-plus sentence, but that case did proceed by summary conviction?
Ms. Wells: It’s not possible to get a sentence of two years or more on the single offence if it doesn’t proceed by indictment. The language of, “by indictment,” here is used to exclude a global sentence for more than one offence perhaps, where the conduct in less serious but there are more offences, so that the global sentence would be two years or more. This is meant to target the very serious sexual-offending conduct that warrants an indictable charge on its own.
Senator Batters: Right. Maybe I was confused, then. Why include the “proceeding by indictment” in it?
Ms. Wells: Specifically to avoid capturing people for whom a global sentence of two years or more would be imposed. It’s a very narrow, targeted approach.
Senator Batters: Even if the global sentence is sexual crimes?
Ms. Wells: There will be discretion and the risk will be reviewed by the judge to determine if registration is appropriate in that circumstance.
Senator Batters: If they’re sexual crimes, why not just have it fall within that category?
Ms. Wells: That was the approach that the Supreme Court said was unconstitutional. There is an effort in this bill to maintain automatic registration in the most egregious conduct, for which there is evidence about risk, and to enact judicial discretion in all other cases, with a list of factors to help guide judges about when registration would be appropriate, to respond directly to the Supreme Court.
Senator Busson: I did have my hand up before Ms. Wells conducted her thorough analysis of the questions that were asked of her. To reiterate what she said, Bill S-12 is a call to action by the Supreme Court of Canada to a regime that they considered unconstitutional. I think the answer around issues of recidivism, et cetera, the reverse presumption or the presumption of registration would hopefully catch the people that are the rightful concern of Senator Boisvenu.
Senator Pate: Thank you again. The interests that are being put forth by this are rooted in a concern about the ways in which the system historically has not taken violence against women seriously. It’s also part of why I think the Supreme Court of Canada may have decided the way it did, because of the disproportionate number of particularly racialized and other folks who end up criminalized for sexual assault, not necessarily all those who have even been reported.
My question is slightly different. You’ve mentioned some of the research. The research shows that being placed on the sex offender registry is more likely to put people at greater risk of not being able to integrate into the community, ultimately, and is not necessarily a valid predictor of recidivism, which is part of why the Supreme Court of Canada overturned it.
Was there any examination of alternate approaches besides the reverse onus and looking at other mechanisms to take violence against women and children seriously, for that matter?
Ms. Wells: The issue we were tasked with specifically was responding to the Supreme Court judgment in the Ndhlovu, which struck down elements of the sex offender registry regime — in the Criminal Code, in particular.
I think what you’re asking is whether there was an interest in maybe trying a different approach to managing sex offenders. I think that is a question that falls to our colleagues at Public Safety as to how convicted offenders are managed and treated in the community. Our focus was on maintaining the sex offender registry in a constitutional manner.
Senator Dalphond: Following up on what Senator Pate just said, I’m going back to the analysis.
[Translation]
I will refer back to the gender-based analysis plus that was produced.
I will read it out. I don’t have the English version, so I will read it out in French:
Characteristics of Individuals on the NSOR: there are 62,516 offenders registered in the NSOR, 70% of which are still under-reporting obligations. While men are over‑represented on the sex offender registry relative to their proportion of the Canadian population, representing 89% of those registered, white persons, who represent 64% of the registry, are under-represented relative to their proportion of the general population. Indigenous people represent 20% of those registered, despite representing 5% of the Canadian population. Black persons represent 4%, which is commensurate with their representation in the Canadian population.
What I wonder is: If we have automatic registration for all cases of violence against women for which the sentence is two years or more, do we risk Indigenous people being over‑represented in the registry because they will be automatically registered?
[English]
Ms. Wells: I’m not sure that we’ve looked at that question specifically, Senator Dalphond. It has brought to my mind the testimony of one of the witnesses who appeared last week and who talked about over-representation in the National Sex Offender Registry being a product of upstream issues such as over-policing, overcharging, et cetera, of offenders and sex offenders in particular. Whether or not the Sex Offender Registry has a role to play, I’m not sure it’s the best place to start looking to start address those issues, if I could put it that way.
Senator Dalphond: The witness referred to the fact the Gladue Principles could be applied by the judge if a person raises the issue that they should not be on the registry, but when it is automatic, will the Gladue analysis apply?
Ms. Wells: Automatic registration will be automatic. There is no consideration for the judge to take into account any factors.
Senator Dalphond: There will be no Gladue analysis.
Ms. Wells: That is correct.
Senator Dalphond: That answers my question. Thank you.
[Translation]
Senator Dupuis: I understand that the text we’re looking at was commissioned from you based on an analysis of a very specific issue, but it seems to me that it’s not very satisfying to know that it focused only on young people under 18 and didn’t look at their situation — because if I understand correctly, that wasn’t taken into account, if I interpreted your answer correctly. The children of women who have been victims are therefore victims of the offence; some say they are indirect victims and others say they are direct victims.
In that sense, I feel it’s a little disappointing on the part of the Department of Justice. I’m not talking about you personally, but I’d like you to pass on the message, please. When the Supreme Court says that because everyone is targeted, it’s an unconstitutional measure, that doesn’t mean we can turn around and say we’re going to take the slightest example we can find and go with that. I feel a more in-depth reflection on acts of violence should be done; women are directly targeted by violence and, in that sense, I urge you to continue your reflection to take violence against women into account. Thank you.
[English]
The Chair: I take that as a statement from Senator Dupuis and invite now Senator Boisvenu.
[Translation]
Senator Boisvenu: I feel that if Indigenous people are over‑represented on the sex offender registry — and I remind you that we’re talking about a sex offender registry, not a criminal registry — it’s because they committed crimes of a sexual nature. Indigenous people are over-represented because of universal and automatic registration, not because of the seriousness of the crimes they committed. We know that Indigenous people don’t commit the most serious crimes; they are often less serious crimes, but because registration is automatic, that leads to over-representation.
Ms. Wells, you said earlier that 90% of people on the registry are sex offenders. I like to remind you of some disturbing data for women. Between 2004 and 2010, 30% of sex offenders in Atlantic Canada were on the registry, 52% were in Quebec and 70% were in Western Canada. That means that on average, about 60% of sex offenders in Canada were on the registry; that is cause for concern.
In fact, if you don’t immediately support mandatory registration of offenders sentenced to two years or more for assault against women — the most serious crimes, therefore — I believe that in four or five years, when the current law is under review, many sex offenders who should have been on the registry will have avoided registration.
[English]
The Chair: Thank you, Senator Boisvenu.
Seeing no other interventions, let me call the question. Is it your pleasure, honourable senators, to adopt the motion, in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: This feels like a vote here.
Mr. Palmer: The Honourable Senator Cotter.
Senator Cotter: No.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Busson?
Senator Busson: No.
Mr. Palmer: The Honourable Senator Clement?
Senator Clement: No.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Pate?
Senator Pate: Abstain.
Mr. Palmer: The Honourable Senator Patterson?
Senator D. Patterson: Abstain.
Mr. Palmer: The Honourable Senator Simons?
Senator Simons: No.
Mr. Palmer: Yes, 2; no, 5; abstentions, 3.
The Chair: The amendment is defeated.
Shall clause 7 carry?
Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Clause 7 is carried, on division. Shall clause 8 carry?
Senator Busson, do you have an amendment?
Senator Busson: I have an amendment.
The Chair: It is 9:05, and we have three amendments left for consideration. The team that supports us is able to carry on for a period of time. If you’re open to that, that would be my recommendation.
My suggestion is that we carry on for half an hour and see whether we can conclude our business.
Senator Busson: Thank you, Mr. Chair. I have amendment BB-S12-8-10-33:
That Bill S-12 be amended in clause 8, on page 10, by replacing line 33 with the following:
“plies for life if the person
(a) was previously convicted of, or previously received a verdict of not criminally responsible on account of mental disorder for, a primary offence or an offence under section 130 of the National Defence Act in respect of a primary offence; or
(b) is, or was at any time, the sub-”.
For clarification on this matter, I would draw your attention to the fact it is a technical amendment to address the oversight in drafting of Bill S-12 in circumstances wherein previous regimes where there was more discretion, and an order to comply with the Sex Offender Registry was not ordered or a subject was not required to comply with the registry for life.
This proposed amendment would ensure that individuals with a prior conviction, not criminally responsible and not previously ordered to register, would receive a lifetime duration order, which was an augmentation to what was previously in the law.
Senator Dalphond: I understand that the amendment adds subparagraph (a), essentially. The rest was already there.
Senator Busson: Yes.
The Chair: That’s correct.
Senator Dalphond: Thank you.
The Chair: Hearing no further interventions, I will ask the question. Is it your pleasure, honourable senators, to adopt the motion, in amendment?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 8, as amended, carry?
Hon. Senators: Agreed.
The Chair: Now we are going to begin apace. Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 14 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 15 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 16 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 17 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 18 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 19 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 20 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 21 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 22 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 23 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 24 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 25 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 26 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 27 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 28 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 29 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 30 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 31 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 32 carry, and this brings us to an amendment from Senator Busson.
Senator Busson: I have a brief amendment to this clause. It is BB-S12-32-25-25. It says:
That Bill S-12 be amended in clause 32, on page 25, by replacing line 25 with the following:
“(1)(b) if, on or after the day on which this subsection comes into force, they have made an application for an exemption”.
For clarification, this amendment basically applies to people who are international travellers or have been abroad. Currently, as the bill is drafted, an individual who is on the sex offender registry because of an offence committed abroad cannot apply for individual relief if they have already applied for an exemption under the current Criminal Code provisions. The proposed amendment would ensure that individuals who are on the registry because of an offence committed abroad and who applied for an exemption prior to this bill coming into force would still be eligible to apply pursuant to the proposed changes in section 490.04.
The Chair: Thank you, Senator Busson. Comments or interventions with respect to this provision? Hearing none, let me pose the question. Honourable senators, is it your pleasure to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: The motion is carried.
Shall clause 32 as amended carry?
Hon. Senators: Agreed.
The Chair: That was clause 32, though. Now we come to a new clause, and I’m going to invite Senator Pate.
Senator Pate: I propose:
That Bill S-12 be amended on page 30 by adding the following after line 5:
“32.1 (1) Subsection 672.501(4) of the Act is replaced by the following:
(3.1) If a Review Board makes an order under any of subsections (1) to (3), it must promptly inform the person whose identity is protected by the order of its existence, its requirements and the consequences of failing to comply.
(4) An order made under any of subsections (1) to (3) does not apply in any the following circumstances:
(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or
(b) the disclosure of information is made by a person who is subject to the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by that order; or
(c) the disclosure of information is made by the victim or witness when the purpose of the disclosure is not one of making the information known to the public.”.
The rationale of this is that it’s the third of three related amendments to prevent criminalization of those who breached non-publication orders by disclosing their own information without intentionally or recklessly revealing the identity of others as recommended by the women’s groups. This amendment proposes the identical wording to my earlier amendments to section 486.4 and 486.5, and that it be added to section 672.501 regarding publication bans ordered by review boards dealing with cases where individuals are found not criminally responsible by reason of mental disorder or are unfit to stand trial.
Senator Busson: I agree substantively on the objective of Senator Pate’s amendment, but I believe it is out of scope because Bill S-12 did not contemplate this section of the Criminal Code that this amendment addresses. And if it were in scope, I believe that it has not been subject to any witness testimony or any other analysis. If I could ask our experts to talk about the scope of this amendment?
Senator Pate: Could I add a correction? It was suggested by the women’s groups in their briefs.
Mr. Taylor: I can’t comment on the issue of whether it’s within the scope. Obviously, that’s for you to decide.
It certainly is in keeping with the spirit of other motions that have been adopted by the committee tonight. In that respect, it provides consistency with those other amendments. What it doesn’t do, though, by comparison, is to address all the other changes that have been made to sections 486.4 and 486.5 with respect to the duty of the prosecutor to inform the revocation process. In some respects, it had some consistency, but in other respects it leaves some inconsistency as well.
Senator Dalphond: I want to follow up on that question. Is that an omission, or is it something that will be made into a comprehensive reform of the provisions applicable to the review board, which are provincial administrative bodies?
Mr. Taylor: Certainly, the scope of the bill as it was introduced was very much focused on sections 486.4 and 486.5. It is a fair observation that section 672.501 addresses the issue of publication bans, so the idea of trying to be consistent. I understand that. The focus, though, was on sections 486.4 and 486.5. There are other provisions in the Criminal Code that relate to publication bans that are similarly not being addressed. So in supporting the government and providing advice to the minister, we have focused on the bill as it was introduced.
Senator Dalphond: I understand the Supreme Court doesn’t deal with that issue. Really, it is convictions and not people who were found not guilty because they were unable to go to trial.
Mr. Taylor: To my knowledge, I don’t know of Supreme Court jurisprudence on this section. Ms. Wells is our expert in this space, but, to pick up your last point, absolutely, this is something we’re seized with as a department in supporting the government in looking at some of the other linkages to other publication ban provisions in the Criminal Code.
Senator Simons: If somebody is found not criminally responsible, presumably they do not go on the sex offender registry?
Ms. Wells: They currently do, senator, yes.
Senator Simons: Even if they’re found not guilty?
Ms. Wells: Not criminally responsible on account of mental disorder.
Senator Simons: Mental health review boards are, as Senator Dalphond, said provincial, as I understand it. They also deal with private health information. Does that have any impact on the nature of Senator Pate’s amendment?
Ms. Wells: I think those are all things that would be explored. They are provincially constituted review boards, but they have a criminal law mandate. It is slightly different than maybe some other consenting capacity boards, for example, in Ontario, that deal with individuals who are under provincial legislation. I think there are a lot of parallels, as Mr. Taylor mentioned, with respect to sections 486.4 and 486.5, but it is a unique area of the criminal law with different considerations that may come into play in any analysis.
Senator Simons: Is this something we could deal with by way of an observation if we don’t pass the amendment?
Mr. Taylor: Just to remind, as with the other provisions, the publication ban orders, as you know, are not only limited to the name of the individual who is the recipient of the publication ban. They apply to any identifying information. To the extent that could include health information, perhaps that would be captured by the scope of the provision as well.
The Chair: Hearing no further interventions, let me invite senators to vote on this. Is it your pleasure, honourable senators, to adopt the motion in amendment?
I think we’re going to have to do a roll call.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Busson?
Senator Busson: No.
Mr. Palmer: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: Abstain.
Mr. Palmer: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Palmer: The Honourable Senator Patterson, Nunavut?
Senator D. Patterson: Yes.
Mr. Palmer: The Honourable Senator Simons?
Senator Simons: Abstain.
Mr. Palmer: Yes, 6; no, 2; abstentions, 2.
The Chair: I declare the motion in amendment carried. Shall clause — what did we call this one? — 32.1 —
An Hon. Senator: On division.
The Chair: On division, thank you. So now we have a bit of a list here. Clause — I’m not sure. Shall clause 33 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 34 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 35 carry?
Hon. Senators: Agreed.
The Chair: One page left. Shall clause 36 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 37 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 38 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 39 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 40 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 41 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 42 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 43 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 44 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 45 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 46 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 47 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 48 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 49 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill as amended carry?
Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: On division, thank you.
Is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make necessary technical, grammatical or other required non-substantive changes as a result of the amendments adopted by committee, including updating cross-references and renumbering of provisions?
Hon. Senators: Agreed.
The Chair: Thank you.
Does the committee wish to consider appending observations to the report? Senator Pate has proposed an observation.
Senator Pate: Yes, I have proposed an observation. It is as follows: Given the importance of ensuring that individuals subject to publication orders are able to avail themselves of the protections against criminalization and prosecution for disclosure of information under Bill S-12, the committee urges the government to take urgent action to: (1) inform those subject to previously existing publication bans of the circumstances in which they are permitted to disclose information as well as the process for verifying or revoking publication bans; and (2) facilitate withdrawal of charges and expungement of convictions relating to historical actions that are now permitted under Bill S-12.
The rationale for this is, as we heard from numerous witnesses, there are ongoing issues of the existence of publication bans that would not be covered retroactively, and so the importance of allowing people to bring forth the information and potentially look at as well being able to apply to have their records expunged if they were criminalized under the provisions before they were repealed.
The Chair: Comments, viewpoints with respect to Senator Pate’s proposed observation?
Senator Batters: I don’t seem to have a copy of it.
Senator Dalphond: Yes. Just to clarify — and it’s late, and I’m sorry if I don’t understand — so this will apply only to those that were convicted of breaching a publication ban? Do you have any idea of the number of people?
Senator Pate: We don’t know. It’s basically also to allow people to go back and say, “There was a publication ban. I would like to have it lifted. I didn’t know that it could be lifted.” It requires a public education component to the bill.
Senator Dalphond: So to inform and facilitate the — you say the charge and expungement of convictions. So you would call that a kind of pardon?
Senator Pate: Similar to what they’ve done with some of the other historical records.
Senator Dalphond: Because we have seen that for marijuana, for example, and some other —
Senator Pate: For marijuana.
Senator Dalphond: — convicted it was not very effective.
Senator Pate: And [Technical difficulties] — no, I agree, but to make it consistent with other provisions that have been passed.
Senator Simons: I have the text in front of me, but I just want to be clear. Some of the people who have been convicted of breaching the publication ban are not victims. They are media organizations. I very much agree with the first part of the observation, but I think the second part — historical actions that are now permitted under Bill S-12 — lots of the things people were convicted of are still not permitted under Bill S-12. It just gives you the chance to go back and ask to have a publication ban lifted. I’m a little uncomfortable with the second part of the observation, because, first of all — are we talking about expunging everybody who violated a publication ban or only victims? What are the historical actions that are now permitted under Bill S-12? You’re still not allowed to violate a publication ban.
Senator Pate: No. But sharing information with your therapist and family and friends is now —
Senator Simons: With all due respect to everybody, including Mr. Taylor, that’s never been encompassed in publication bans. Has anybody ever been convicted for sharing information about their sexual assault with their therapist?
Senator Pate: They have, with family and friends.
Mr. Taylor: I don’t know the answer. All I would say is you have certainly heard testimony from victims who feel that the status quo is exposing them to possible criminal liability and — so, certainly, you have heard a lot of testimony around the different considerations that go into —
Senator Simons: But that’s not the same thing — expunging all records — primarily, the people who have been convicted have been media organizations, I am intuiting.
Mr. Taylor: Certainly, you raise interesting questions that would need to be explored, because, certainly, in examples of offences for which expungements might be possible now, there may be variations and some situations where a historical conviction was appropriate, and then other examples where a historical conviction, viewed through the lens of law today, would be inappropriate. That’s why the legislative regime allows for those decisions to be taken.
To the extent that what Senator Pate is proposing is to go back and look at situations where victims have been prosecuted for breaching their own publication ban, you would have to provide specificity around when those circumstances would be appropriate, for example, where their breach did not lead to the identification of another victim subject to a publication ban. Those would be the kinds of policy questions that would need to be assessed.
The Chair: Could I just say that the language that Senator Pate proposes is the withdrawal of charges and expungement of convictions for actions that are now permitted under Bill S-12, which very much focuses on victims, and perhaps in some cases witnesses, those are the folks that Bill S-12 provides greater flexibility in terms of public disclosure of information.
[Translation]
Senator Dupuis: Senator Pate, the French version should be corrected. There is an error but in your point 2, on the second last line, might we consider replacing “faciliter” with “considérer le retrait ”? Given the information we have tonight, couldn’t we urge the government to consider withdrawing delisting?
[English]
Senator Pate: Are you suggesting stronger language?
[Translation]
Senator Dupuis: No, I would suggest using “consider” rather than “facilitate,” because between you and me, “facilitate” is also extremely vague. I was wondering if you would consider replacing the word “facilitate” with “consider withdrawal of charges,” and therefore consider the withdrawal and expungement of related convictions.
[English]
Senator Pate: The choice of facilitate — I was thinking of it as more active than what you’re hearing it as, which is that it is not just they consider it, but they would actually have to facilitate it happening, so almost a presumption that it would happen.
If that precludes people from being able to support it, I would be happy to have a wording change.
Senator Batters: Of course, it is not the federal government’s charges to consider withdrawing; it is the provincial prosecutors who would do those sorts of charges.
Federal government could put into place an act talking about expunging of convictions or something like that, as they have with other types of matters. They aren’t their charges to withdraw.
Senator Busson: Would Senator Pate consider approval of the first paragraph and not the second?
Senator Pate: I would rather have “consider.”
The Chair: It might be appropriate, given the point that Senator Batters made, the language might be better to use the word “encourage” since it is actually going to be provincial prosecutors who would have to give that question consideration.
Senator Pate: I am fine with that.
The Chair: It is soft and not compelling, but it’s probably jurisdictionally more appropriate.
Let me take that as a friendly amendment and invite our consideration of whether we support adopting this observation to be appended to our report?
[Translation]
Senator Dupuis: Can I ask that, on the first line, the French version instead say that the bill takes into account the importance of ensuring that people who “are the subject” of a publication ban... that they are not the people “targeted,” but those who “are the subject” of a publication ban? Thank you.
[English]
The Chair: We invite that being grammatical or adjusted language. If you have a phrase along those lines, Senator Dupuis, that would be welcomed.
Can I ask again, are we supportive of the observation being appended to our report to the Senate?
Hon. Senators: Agreed.
The Chair: Carried.
Is it agreed that I report this bill, as amended, and with this observation to the Senate?
Hon. Senators: Agreed.
The Chair: That concludes our deliberations on the bill and clause-by-clause consideration.
Before we go, I want to thank you for this bit of an endurance run on each of your parts and the way in which you have engaged, particularly to thank our witnesses, if we can call them that, Ms. Wells and Mr. Taylor, for enduring our energetic, I think at some times, engagements with you, as well as your patience until we got to the parts of the bill that were of the greatest knowledge in your part.
I want to extend my thanks to all of the professional and support staff who have supported us through this three and a half hour set of deliberations. It has been valuable for the work.
I want to thank Senator Boisvenu as the critic of the bill and Senator Busson as the sponsor of the bill for guiding us through these deliberations in their regularly professional way.
I want to now invite Senator Dalphond to intervene.
Senator Dalphond: To conclude on your thanks, Mr. Chair, I would like to thank you for your patience and the way you directed the work here. Even myself, I once interrupted you and I apologize for it. I must say that you were a very nice chair despite the almost four hours of meeting. Thank you, Mr. Chair.
The Chair: You were certainly our most difficult senator, Senator Dalphond.
I know I’m probably not supposed to do this: Mr. Palmer has indicated this could well be his last meeting as clerk of our committee. We’ll work on him. Other opportunities and demands upon his time may cause him to depart from us.
He tells us, although it is a bit inconsistent with his obvious desire to leave the committee, that this is his favourite committee. We’ll cross-examine him when the opportunity presents itself.
We are not scheduled to meet further this week. Assuming that this is the last week of Senate deliberations, we’ll not return until September. I want to extend my best wishes to you in the committee context until we return to deliberations in September.
[Translation]
Senator Dupuis: May I move that the committee thank the clerk, Mark Palmer, for his service, support and all the interaction with our offices? I thank him very much.
[English]
The Chair: I echo that. I also observe that it will be embarrassing if he shows up in September. On that note, we are ready to adjourn. Thanks again.
(The committee adjourned.)