THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, June 7, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:19 p.m. [ET] to consider Bill S-12, An Act to Amend the Criminal Code, the Sex Offender Registration Act and the International Transfer of Offenders Act.
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Hello, everyone. Before we begin, I would ask the senators to introduce themselves.
[English]
Senator Simons: Senator Paula Simons from Alberta, Treaty 6 territory.
Senator Busson: I am Bev Busson from British Columbia, the sponsor of this bill.
Senator Tannas: Scott Tannas from Alberta.
Senator Greenwood: Margo Greenwood from British Columbia.
Senator Klyne: Marty Klyne from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dalphond: Pierre Dalphond, De Lorimier, Quebec.
Senator Clement: Bernadette Clement, Ontario.
Senator Boisvenu: Pierre-Hugues Boisvenu, La Salle, Quebec.
[English]
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
Welcome, minister and officials.
Senator Batters: Denise Batters, Saskatchewan.
The Chair: Brent Cotter, senator for Saskatchewan and chair of the committee.
Senators, today we begin our study of Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act. I wanted to acknowledge that Senator Busson, who joins our committee today, is the sponsor of this bill, as she mentioned, and Senator Boisvenu is the critic.
Let me just say, before I introduce our guests, Minister Lametti is in the House, so to speak, and he may be interrupted to attend a required vote, which he is able to do virtually. We may need to suspend briefly while Minister Lametti exercises his right to vote in the other place. So we’ll just take a brief pause when that’s required.
Today, we welcome Minister of Justice and Attorney General of Canada, the Honourable David Lametti. He is accompanied today by Matthew Taylor who joins us once again. Mr. Taylor is General Counsel and Director of Criminal Law Policy. We also welcome Joanna Wells, Acting Senior Counsel, Criminal Law Policy Section. Also with us, though not at the table, is Isabelle Desharnais, Counsel, Criminal Law Policy Section.
As is the normal practice, Minister Lametti, five minutes and then we’ll engage you in conversation. The floor is yours.
[Translation]
The Honourable David Lametti, P.C., MP, Minister of Justice and Attorney General of Canada: Honourable senators, thank you for the opportunity to speak with you today about Bill S-12.
[English]
At the outset, I recognize that this bill deals with difficult and complex issues. Sexual crimes are a scourge that must be appropriately framed by criminal law. That’s precisely what Bill S-12 does.
[Translation]
This bill is a priority for the government for various reasons. All of these reforms are the result of the considerable effort our government has made to crack down on sex offenders and to better support the victims of crime.
[English]
We have no choice but to act. If this bill does not receive Royal Assent by October 29, the courts will no longer be able to require sex offenders to register with the national registry. This is an unacceptable result. Just as importantly, this bill takes important measures to empower victims of sexual violence by reforming the publication ban regime.
There is no one way to be a survivor. Enabling those who wish to tell their own stories is vital. We are proud to collaborate with survivors to ensure that the criminal justice system treats them with the respect and dignity that they deserve.
[Translation]
I will now outline the key elements of the bill. In the Ndhlovu case, the Supreme Court of Canada ruled that certain aspects of the registry were incompatible with the Canadian Charter of Rights and Freedoms. That included the automatic registration requirement, and the lifetime registration of offenders convicted of multiple offences at the same time.
The response we propose is mandatory registration for a small group of especially serious cases and presumed registration for all other individuals.
In cases of presumed registration, an individual will have to show that registration would unduly affect his rights.
Certain types of sex offences are clearly heinous and harmful to society. In those cases, automatic registration is still appropriate.
[English]
This is why Bill S-12 proposes to maintain automatic registration in two instances: for those who commit serious sexual offences against a child and for all repeat sex offenders.
The approach we take we believe strikes the right balance between public protection and Charter rights. For those interested, I have tabled the Charter Statement for this bill and it is available on the Department of Justice website.
[Translation]
Bill S-12 includes others changes in response to the Supreme Court decision regarding automatic lifelong registration.
The proposed reforms would enable the courts to order lifetime registration in cases where the individual is at risk of re‑offending.
Further changes would include the following: first, adding new offences to the list of those that may result in registration, such as the nonconsensual sharing of intimate images and sextortion, so that more people could be registered where appropriate.
Second, persons convicted of sexual offences outside Canada would be required to provide more information to the police upon arrival in Canada. That would help the police determine whether those persons should be required to register in Canada.
Third, registered persons are required to provide 14 days advance notice of any travel, and the exact address of their destination. That would enable the police to better assess the risks and, if necessary, alert other law enforcement agencies of the order regarding the individual’s travel.
Finally, Bill S-12 establishes new mechanisms to facilitate the application and enforcement of the law. Those include new provisions regarding the warrant that would enable the police to arrest an offender who has not met the notification requirements and to take that person to the registration centre to facilitate compliance with their requirements.
[English]
Our proposed SOIRA, framework will be more effective than the current system. We want to ensure that law enforcement has the best possible tools to protect Canadians against sexual offending.
This brings me to the second, equally important objective of the package. Bill S-12 includes critical changes that address the needs of survivors and victims, including victims of sexual violence. These changes are intended to empower survivors by modernizing the rules governing publication bans and bolstering a victim’s right to information as provided for in the Canadian Victims Bill of Rights.
The publication ban regime was originally enacted to allow victims and survivors and witnesses to participate in the justice system without suffering the negative consequences for their identities being made public. Publication bans and the certainty of them being issued can also encourage the reporting of sexual offences that are under-reported, such as sexual offences.
However, some survivors have expressed a desire for a greater voice and agency in relation to publication bans both when they are initially being sought and when it comes to revoking or modifying them once they are in place. In essence, some survivors are calling for the justice system to allow them to share their experiences with others more freely, should they wish to do so.
I strongly believe in providing survivors of sexual violence with full agency over their own stories.
The reforms would require prosecutors to take reasonable steps to consult with victims before applying for a publication ban, and clarify the process for revoking or varying publication bans, which some survivors have characterized as being complicated and difficult to navigate.
I stress that any individual who wishes to have their identity shielded by a publication ban would still be able to do so. Again, this is about agency and ensuring that the law offers protection for those who would like it without silencing those who wish to speak out.
The bill will help bring the publication ban regime into the digital age by ensuring that its provisions apply to archived material on the internet in order to address issues relating to material published before the ban was in place.
Finally, Bill S-12 addresses concerns from the Federal Ombudsperson for Victims of Crime and other victims’ advocates who have shared that victims often struggle to access information about a criminal case after the trial and sentencing stage.
Guided by the Canadian Victims Bill of Rights, Bill S-12 will require a court to inquire whether a victim would like to obtain post-sentence information about their case. For offenders sentenced to two years of imprisonment or more it would require the court to provide the victim’s contact information to the Correctional Service of Canada, also known as the CSC, in order to facilitate the provision of information to victims by the CSC and the Parole Board of Canada.
This change will provide survivors with key information about their cases when desired. Those who wish to put the case entirely behind them will also be able to do so. Ultimately, the choice should not belong to the government but with survivors.
I’m aware that since the introduction of this bill some advocates have indicated that they would like to see some changes made to improve the proposed reforms. I have heard those concerns. I am committed to ensuring that Bill S-12 fulfills its objectives and finds the appropriate balance. We do want to get this right.
To that end, over the past few weeks my office has been working closely with survivors and victims and their advocates. I had the honour of meeting with several survivors and hearing their stories at My Voice, My Choice in early May.
To survivors of sexual violence who have shared their experience, and advocates who are working with us to make the bill stronger, I thank you. We hear you. Canada will be stronger for your advocacy. Thank you.
The Chair: Thank you, Minister Lametti.
We will begin questions with the deputy chair of the committee, Senator Boisvenu, followed by the sponsor of the bill, Senator Busson.
[Translation]
Senator Boisvenu: Hello, Mr. Minister. Hello to your colleagues as well.
There is apart of the bill that I am very uncomfortable with.
You said that registration will be mandatory for offences involving children. For a woman who is sexually assaulted though, registration is not mandatory. Is that correct?
Mr. Lametti: It will not be mandatory, but the basic presumption is that the person will be registered. The Supreme Court ruled that, by and large, automation registration runs counter to the charter. It gave us a year to make changes.
Senator Boisvenu: If it runs counter to the Charter, why include it just for children? That also runs counter to the Charter.
Mr. Lametti: We focused on a very small portion of cases in which the victims are especially vulnerable. We think that complies with the provisions of the Charter.
Senator Boisvenu: In the case of a teacher who assaults students or persons under their authority, those people are also vulnerable.
Mr. Lametti: That’s true, but we want to comply with the Supreme Court’s decision. The basic level is presumed registration, as the Supreme Court stated and as the committee recommended to the Conservative government in 2010. So we are acting on a suggestion from our fellow parliamentarians.
Senator Boisvenu: You will understand that I do not share your point of view. I think women should have been included in this bill, along with children. We have to think of women who are in a vulnerable position, for example, in cases of domestic violence where they are dominated and sexually assaulted by a man.
Mr. Lametti: The Supreme Court clearly stated, senator, that automatic registration was difficult to justify under the Charter. We found —
Senator Boisvenu: Your reasoning, minister, should apply to children as well. You are making an intellectual dichotomy, and I do not like it.
You say you are empowering victims. Why does the bill say that it is a criminal offence for a victim to accidentally disclose information about her case, information that is not supposed to be disclosed? In that case, if a victim makes a mistake by disclosing information, could she not at least be given the benefit of the doubt?
The other situation is a victim who speaks to a doctor or therapist but is not supposed to disclose information relating to the trial, and that is also illegal.
Mr. Lametti: To my knowledge, doctors are bound by confidentiality requirements. I will ask the experts with me to answer your question.
Senator Boisvenu: It is not in the bill. In the bill, it says that victims cannot tell anyone anything, including a therapist. Bill S-206, for instance, was passed regarding the disclosure of information by jurors, and the same approach should be used for victims, that is, they should have the right to talk to a therapist. Do you not agree?
Mr. Lametti: To my knowledge, that is already in the bill, but we can look at it more closely.
Senator Boisvenu: An amendment could be proposed to clarify this.
[English]
The Chair: We need to give the minister and his experts an opportunity to answer the question.
Matthew Taylor, General Counsel and Director, Criminal Law Policy Section, Department of Justice Canada: It is difficult to answer that question definitively in the abstract because it will depend upon how the court — well, it is going to depend upon the facts of the case, first and foremost. It will depend upon the knowledge of the individual, but we certainly understand the question. As the minister said, it is something that he is committed to looking at.
The Chair: Senator Busson?
Senator Busson: I would like to give the minister a moment.
The Chair: You have a deep question coming, and —
Senator Busson: I do.
The Chair: You would want his complete attention. We will wait a moment.
We are debating at this end, Mr. Lametti, whether you look better with your glasses on or off.
Mr. Lametti: Facial recognition software, and under the light, sometimes it works better without the glare of my glasses.
Senator Busson: Thank you, chair.
Thank you, minister, Ms. Wells and Mr. Taylor for being here.
I’m proud to be the sponsor of this important and pressing legislation. I have a question which relates to the publication ban part of the legislation.
The amendment to section 486.4(1) of the Criminal Code ensures that upon the application of a publication ban by the prosecutor, the judge must inquire whether reasonable steps have been taken to consult with the victim beforehand.
Could you further explain this consultation requirement and how it gives a greater voice and agency to the victims of sexual assault?
Mr. Lametti: Thank you, senator, first of all, for taking on this bill. On behalf of the government, it is very much appreciated. We appreciate the work that you are doing.
There is a presumptive publication ban, in effect, prior to this legislation coming through. We had heard from victims and survivors that sometimes they never had the chance to pronounce on the publication ban at the outset of the trial.
We appreciate that sometimes it is difficult. We appreciate that, in practice, sometimes a victim or a survivor is not present at the very first hearing.
We wanted to make sure that there was an obligation on the part of the presiding judge to make sure, working with the Crown prosecutor in particular, they could speak with the victim and see what the opinion was with respect to a publication ban. It is an obligation of best efforts, to do their best to do that.
We have also clarified the subsequent process so that if at the outset the victim or the survivor does not want the publication ban, or if during the course of the trial or after there is a desire to be able to tell the story publicly, there is now the opportunity to do so. We have tried to — there is a common law right, but we found too that that was — again, from the testimony of victims and survivors — often cumbersome. We have tried to make it clear to everyone that there is a right to go back to the judge and ask for a change.
Senator Busson: For clarification on that issue, I am wondering if you would explain to us what you consider the definition of “consultation” versus “consent” as it is anticipated in this legislation.
Mr. Lametti: The underlying presumption is still that there will be a publication ban at the outset, again, as a safety measure for witnesses as well as survivors and victims. But it is really up to the victim or the survivor to say, “No, I don’t want it.”
It will be the determinative voice, unless there is a great overriding reason to not — there are multiple victims, for example, and not all of them would agree. It is consultation plus in that sense. It is consultation and it isn’t determinative, although it will be determinative most of the time in most cases.
Senator Busson: Thank you very much for your answer.
[Translation]
Senator Dalphond: Welcome back, minister. We see each other nearly every two weeks.
My question pertains to the procedures for revoking a publication ban. I see that a clause has been added so that the victim may apply to the court to amend the order. What does “the victim may apply” mean? Do they have to hire a lawyer or may they apply to the court? Would it be up to the Crown to tell the victim that it wishes to have the publication ban revoked, will take care of the matter and approach the judge?
Like you, I have met such groups, including My Voice, My Choice. I remember the case of the mayor of Longueuil who disclosed her situation publicly, which had a very positive effect. A number of other people then reported sexual assaults, which they would not have done before.
I would like to know whether the process will be simplified so that victims no longer have to incur costs to have a ban revoked.
Mr. Lametti: That is certainly the intent, the purpose and the spirit of making it easier for the victim to make an application. It is a simple request and, as we have said publicly several times, we expect that a judge would accept the victim’s wishes without hesitation.
That said, we are certainly willing to look for ways to clarify or simplify the process. This was indeed raised by My Voice My Choice. So we are working with that group and are willing to work with you, specifically to clarify the process.
It has to be simple and easy, nothing onerous, so we are with you in spirit.
Senator Dalphond: If I understand correctly, your department is open to considering an amendment that would clearly explain that the process can be very simple for a victim to approach the Crown prosecutor, for instance, and ask him to make an application to the court rather than hiring a lawyer to make that application to the court.
Mr. Lametti: The application could even be made directly to judges. We can try —
Senator Dalphond: I know that people are not familiar with courthouses or procedures.
Mr. Lametti: That is true, so we can find the best approach.
Senator Dalphond: Thank you.
[English]
Senator Pate: Thank you, minister and officials, again. Picking up on the question raised and which you just discussed, where there are multiple victims, there may be issues if you essentially provided a veto to victims. Yet I’m sure you’re aware that in Commonwealth countries, such as Australia, such provisions exist. They allow folks to self-identify and share their stories as long as they don’t indicate the existence of other victims and therefore preserve the privacy of those who don’t wish to have their identities revealed.
Was this approach considered by your department? If so, why was it rejected? If not, would that be a possible area where you would look at amending the bill?
Mr. Lametti: Let me answer the second question first, which is, yes, certainly we would look at that.
We were moving expeditiously because of the one year given to us by the Supreme Court of Canada. We certainly want to empower victims. We felt the presumption in favour of a ban at the outset that could then be discarded by a victim or a survivor was the way to go, but certainly we would be willing to look at that as an idea.
Senator Pate: I turn to another section that, despite the evidence again, your government has certainly taken part in producing — not necessarily your department but Public Safety. This surrounds the fact that reoffending rates for sexual offences are relatively low. In fact, the Supreme Court of Canada addresses this in the decision which gave rise to this legislation.
The bill actually increases the mandatory minimum penalty. Certainly, one of the criticisms to which we have been made privy is the fact that judges are already concerned that they can’t apply subsection 718.2 of the Criminal Code — especially subsection 718.2(e) — particularly when we see the incarceration rates for Indigenous accused of sexual offences are higher than that for non-Indigenous. Have you given any thought to how you could nuance that or whether there’d be openness to revisiting those provisions as well?
Mr. Lametti: Just to be clear, we are not talking about sentencing here. We’re talking about registration on a registry.
Senator Pate: No, but the mandatory minimum has also been increased under the provisions. That’s my understanding.
Mr. Lametti: There’s an increased maximum, I believe, not the minimum. That’s for a sexual offence against a disabled person. That’s something that just makes that provision coherent with similar crimes. Something that was pointed out by advocates for the disabled is that there appears to be a lesser offence for the same crime committed against a disabled person. It’s not a minimum; it’s increasing the maximum in order to bring it in line with a similar offence.
That is distinct from what we’ve done with the sexual registry. On the recidivism point I think you’re making — because we are continuing — again, for a first offence, the normal rules apply with respect to the sexual registry. There is a presumption in favour of registration, but that can be rebutted. It’s up to the sentencing judge to decide on the evidence.
Once there is a second offence, the person is a recidivist at that point. It’s a narrow swath of people, as you’ve pointed out, but we do feel that will withstand Charter scrutiny. Because of that recidivist act, we feel that it is justified to have an automatic registration in that case.
Senator Pate: You are saying this is essentially in response to disability groups requesting a similar mechanism to say that it was put in place just as for Indigenous women victims? Or was there some particular call that they had?
Mr. Lametti: You are actually pointing to a sentencing provision in the act. It was to make the sentence the same whether a person is disabled or not disabled. Again, it was a bit of an anomaly in the act. Again, the range of sentencing is still there. We’ve increased the maximum when one proceeds by way of indictment.
The other principles still apply at sentencing, whether it be taking into account Gladue factors or everything else that a sentencing judge takes into account.
Senator Pate: Except where there’s a mandatory minimum?
Mr. Lametti: This isn’t a mandatory minimum. This is a maximum penalty.
Senator Batters: Minister Lametti, thank you for appearing at our committee today. Before we start, I have to say I was very surprised to read in a media article just a couple of hours ago that you intend to reject some of the amendments that our Senate committee made, and which were confirmed by the Senate, on Bill C-9. There was no detail as to which ones would be rejected. A spokesperson from your office made the comments in the article.
You declined our committee’s invitation to reappear on that bill when we could have had a dialogue at that point about the substantial evidence we heard and the changes to the bill that major committee witnesses suggested. Since you are before us now, I’m curious why senators have to hear from your press secretary in the media whether you accept the Senate’s important changes. Is this how your government intends to transmit messages on legislation back to the Senate?
Mr. Lametti: Thank you.
I note the headline in that The Canadian Press article did not reflect the content of the article. It has now been altered to say there are some suggestions that you have made that give me pause, that is true. I will go back and say what I said when I appeared before you, which was there was a great deal of work done by the Canadian Judicial Council, in collaboration with the Canadian Superior Courts Judges Association, to put forward a set of proposals which we worked on and framed in that piece of legislation. Things that would go against the principle of judicial independence, which is a foundational principle in our legal system, give me pause. I haven’t rejected anything and it’s clear now when you read the article that I’m expressing concern. I’m going to look at that carefully. We will eventually debate it in the House when it comes back in front of the House. I will give my opinion in the House at that time.
Senator Batters: Which is the proper way to do it, instead of through the media, especially where it’s not indicated which amendments are being rejected.
Mr. Lametti: That’s fair. It was an open-ended answer. I was being honest. Things gave me pause. But I wasn’t rejecting anything out of hand as is now clear in the media story.
Senator Batters: Yes, you referred to the Canadian Superior Courts Judges Association who supports having a federal court of appeal as a right.
I will go on to this particular bill. On this bill, Bill S-12, often victims are unaware a publication ban is in place and they can flout out without knowing they have. Does the bill protect them from unknowingly or innocently doing so, or would they be subject to a criminal sanction if they shared their story, for example, with a support group or therapist? If it does protect them in those cases, where is that protection in your Act?
Mr. Lametti: Thank you, Senator.
Your question about the concern is absolutely correct in the sense that one of the things we heard from victims and survivors is they didn’t necessarily know about the ban being in place. What we are hoping to do with the legislation, by creating an obligation on the part of the presiding judge working with the Crown to make sure that the opinion of the person is sought, or to use best efforts, helps us to eliminate the doubt in most situations. Having that positive obligation means that we will have a better initial position in which the survivor or victim has had a say in whether there will be a ban.
I have already answered in response to your colleague, I feel that speaking to a professional, medical professional, for example is already covered under that kind of secrecy. But I’m open to making that clearer. We can work together on that.
What we have done subsequently in the small number of cases that remain, is we have enabled the victim or the survivor to change the status of the ban in an easy process. If a person does want to tell, let’s say her story, she will be able to easily apply to the judge to have the publication ban removed. That happens. That is something that survivors and victims have told us. Sometimes it happens during the trial that the first few days or weeks they were comfortable with the ban but as the trial progressed they felt the need to tell their story. Sometimes it happens later. We are trying to open up the possibility in all cases.
All of that together, senator, avoids that possibility of error. The information at the outset, and then the easier possibility to change all the way through, covers the ground.
Senator Batters: I wanted to briefly ask you whether you have a GBA Plus analysis for this bill and, if so, can we please have it? Again, I point out it would be helpful to have such things before you come to the committee rather than after.
Mr. Lametti: Yes, we do. It has been done. I know you are channelling your inner Senator Jaffer. Thank you.
Senator Klyne: Welcome, minister and guests.
Bill S-12 limits mandatory SOIRA orders to two circumstances involving particularly serious or repeat sexual offences. In all other circumstances, judges retain discretion not to take a SOIRA order, that Bill S-12 sets out factors to be considered by the court in exercising that discretion. What steps have been taken or are being considered to ensure judges have adequate access to resources and training to guide them in effectively applying these factors and exercising their discretion vis-à-vis SOIRA orders?
Mr. Lametti: Thank you for that question, senator.
First let me add a framing point. Yes, there is discretion but the default provision is registration. There is a presumption in favour of registration for all offences. If there is doubt, there will be registration.
What we have then done and, again, as I reminded in a previous answer, this is what the committee in 2010 initially recommended: giving the discretion to the judge with a presumption in favour of registration.
Obviously, and then the list of factors will then help guide the discretion and asking the judge to give reasons when that discretion is exercised in favour of not registering. Again, there is a framing there that points to registration but not in all cases. Obviously, this is something I hope the National Judicial Institute will take on in terms of its training that it does for Superior Court and other federally appointed judges and occasionally provincially appointed judges. I hope they will see this as another opportunity for training.
There is a clear, I think, framing to the discretion here. I think it is something that meets the test given by the Supreme Court as well as, I believe, is something that serves the Canadian public in terms of public safety.
Senator Klyne: Thank you for that, minister.
Minister, from your perspective, how might Bill S-12 contribute to changing societal attitudes toward sexual offences which are considered the most heinous and degrading forms of violence by promoting a culture of prevention, education and support for victims and is this a strategy that the new National Action Plan to End Gender-Based Violence can support?
Mr. Lametti: I think so. First of all, we send a message that there are still a series of offences that require registration. But it also sends a message about the seriousness with which we take this type of offence.
I think there is an equally positive message in empowering victims and survivors of sexual violence. It is recognizing not just their humanity but their agency and their ability to make decisions that reflect how to best go forward. I think that’s a critically important message.
Thirdly, we have taken and it hasn’t been raised yet so I’ll do it briefly. We have added a number of other criteria for automatic registration. The nonconsensual distribution of intimate images is something that has come about because of the internet age; sextortion and that sort of thing; overcoming resistance to offence by choking, something that often happens with intimate partner violence. We are sending out a message in all of those cases by identifying these other acts by saying this will get you on the registry. This is serious. I think it all fits, both the empowerment parts and the messaging parts. I think that is something that works with our larger strategy.
Senator Klyne: Thank you.
The Chair: Mr. Lametti, do you or your colleagues have any sense in general terms of how effective and well utilized to affect the national sex offender registry is? I’m interested in the degree to which a valuable tool actually is achieving the kind of investigative and other benefits that we hope for?
Mr. Lametti: I will initially answer the question and turn it over to one of my colleagues. We are told by law enforcement that this is helpful in a grouping of cases, particularly of sexual violence by strangers. It is something that police find useful. It is something that the general public finds reassuring, knowing that there is this kind of registry. Even though they cannot access it — because it is not public — they know that the police can access it, and there is enough institutional trust that exists.
That being said, we do plan a review, just over a year down the road, of the registry itself. We’re responding to the Supreme Court here, and we have a deadline in order to do it. We like to ask the same question, effectively, that you are asking, and we are trying to gather better data across the board, as you know and as I have said to a number of you, a number of times, over the last number of years.
Getting that data together and doing a more focused study on the effectiveness of the registry is something that is overdue.
The Chair: I saw Mr. Taylor nodding in agreement. That means, minister, you gave the right answer.
Senator Simons: Thank you. I have two completely separate questions. I will start with what I think is the simpler one.
For people in the past who have been under a publication ban, perhaps for 20, 30, 40 years, what will be the process for them to revisit those historic bans? What about people who have made a previous application to the court and been turned down? Will they have a chance to apply under the new protocol?
Mr. Lametti: The answer is yes. I do not know if that was both of the questions or just the simple one?
Senator Simons: No, no. That was the first one.
Mr. Lametti: The answer is yes. They will be able to apply to the court. The intention is that anyone can have access to this, including past publication bans.
Senator Simons: Including people who have previously petitioned the court for permission and —
Mr. Lametti: Yes. The idea here is that you can change your mind at any time, as a victim or a survivor.
Senator Simons: That is not the question that I am asking. There are cases of people who have previously gone to court, asked to have the publication ban lifted and been denied that right. Will they be able to effectively appeal that?
Mr. Lametti: The short answer is yes.
Senator Simons: Okay.
My second question is about the reverse onus provision. Yes, from the point of view of somebody who is in favour of these registries, the presumption of registration may sound like a good thing.
For me, I worry that the power of the state is reversed here. I understand that these are people who have already been convicted. Typically, as we all know, it is up to the Crown to make the case for conviction and up to the Crown to make the case for a tougher sentence. In this case, you are asking the accused, who is now the convicted person, to be able to defend themselves against the state in a position of vulnerability, where they are not going to have a presumption in their favour. The presumption is reversed. Yet when we look to the test case here, the Ndhlovu case from Edmonton, we see a case of somebody who is not the stereotypical bogeyman that we imagine when we imagine the worst of sexual offenders.
I worry that there are people who may be severely disadvantaged and not able to combat that reverse onus effectively.
Mr. Lametti: I understand your concern. I have to admit, though, I don’t share it in the same way that you do.
First of all, this isn’t a reverse onus in criminal law in the determination of guilt or innocence. That is a very different thing. There are a number of very different standards and safeguards in criminal law and a number of different exceptions. In that sense, you are innocent until proven guilty.
Here, you have been proven guilty, and you have been sentenced. The question then is should you be put on this register for having been found guilty of a sexual offence? At this point, I believe, given the framing that we have given to the judge, there is a very good and understandable argument on the part of society to say there is a presumption that you will be registered so that nobody else might fall victim to you, but you have a chance, as in the Ndhlovu case, to say why you shouldn’t be on the register. I think we have struck the right balance here.
Although I would fight tooth and nail to not have more reverse onuses than is necessary in the determination of guilt or innocence, I believe that we have struck a different but better balance here. Again, there is a finding of guilt. There is also a need to make society safe and to make society feel safe. There is a justification here that does justify that reverse onus.
Senator Simons: Because I was a journalist for many years, I am very familiar with the idea of a publication ban affecting publication. I was a bit taken aback by Senator Batters’ question, because as I understand it, you are not — maybe I am very wrong about this — but you are not forbidden to speak to a therapist or a support group. The ban applies to people who publish; is that not correct?
Mr. Lametti: That is my understanding as well. I am happy to make that more clear, as I have said to both Senator Boisvenu and Senator Batters.
Senator Simons: Thank you very much.
The Chair: Before we go to the second round, minister, could I ask a question that follows up on Senator Simons’ question.
I agree entirely with your observation about there has been a conviction, and the onus is on the Crown to establish that. The mandatory registration has the flavour of sentencing, though. Maybe we will not call it “sentencing,” but it has that flavour of a consequence of your conviction.
Normally, we have the structure where the Crown has to establish the basis of what sentence should be applied. Sometimes the law establishes certain minimums, but generally the onus remains on the Crown. There is an argument to say that maybe the Crown ought to establish this consequence should be applied to a person as opposed to it being the other way around. Could you respond to that in the context of whether or not this feels like a sentence?
Mr. Lametti: I would agree, Mr. Chair, that it is an aspect of sentencing. There is absolutely no question about that. Depending upon incarceration or whatever the sentence is, it doesn’t actually affect the person being or not being in jail. There is a great deal of liberty that is possible even with a registration on the register. We have imposed some travel restrictions, again, something that we believe will help make communities safer, the 14-day notice, for example.
As an aspect of sentencing, there is still a great deal of liberty that can happen when a person finishes their sentence and is back out in society.
The Chair: Can I just follow up on that point?
I understand your point about liberty. This isn’t a deprivation of liberty in the sense that somebody goes to jail, but it is a restraint consequence, and there is actually case law at the Supreme Court of Canada that says that the onus is on the Crown with respect to sentencing.
If we think of this as a form of sentencing, it strikes me that one needs to make the case that the burden should suddenly be reversed for a component of that sentence.
Mr. Lametti: My understanding is that the Supreme Court has not treated it as sentencing but as a consequence thereof. They have given us a road map, we feel, in the Ndhlovu case, and we have taken that up.
I go back, again, to the fact that the committee in the other place studied this in 2010 and recommended, effectively, what we are doing. The government of the day chose to go further, and the Supreme Court has told us they went too far.
The Chair: Thank you.
We are down to ten minutes. We have four interveners for the second round. I would ask that we do that briefly, for a couple of minutes each.
Senator Busson: I will try to be as brief as I can.
Part of this bill also talks about the post-sentencing information of victims and their right to information. Could you give us a little bit of contemplation about what obligation this creates on Correctional Service Canada? Is there timeliness to this right to information, or is there concern that this may create a false sense of security?
Mr. Lametti: Thank you for the question, senator.
I don’t think it is about creating a false sense of security. It is about keeping victims informed, and, again, we have heard that.
This is something that the Federal Ombudsperson for Victims of Crime felt strongly about and had given us a formal letter requesting that we do this. So we are doing this, and, in fact, when we made the announcement, he was at my side and was very much in favour of what we are doing.
There has been, over time, instances where a family finds out about a decision, whether it is parole or another matter — and I can think of an example recently — and where they would have liked to have been informed that a decision had been made with respect to incarceration or some other decision that is being made about the offender. We want to keep victims better informed, and the Canadian Victims Bill of Rights says they have a right to be informed.
What we are trying to do is create a mechanism whereby there is an automatic impulse on the part of the judge to take that information down and then for that information to be given to Correctional Services Canada. There is an obligation on the part of Correctional Services Canada now to make sure that victims are kept informed.
Senator Busson: That was my question. Thank you.
[Translation]
Senator Boisvenu: I would like to go back to the issue of registration not being mandatory for women.
You passed Bill C-5, which was also criticized by Quebec’s minister of justice. Under that bill, people who have assaulted women may serve their sentence at home. You amended the National Sex Offender Registry. You are making registration mandatory for offences involving children, but not for those involving women.
What are women to conclude from that?
Mr. Lametti: The distinction we just made, senator, is between adults and children.
Senator Boisvenu: Do you have a legal opinion stating—
[English]
The Chair: Senator Boisvenu, you asked a question, and the minister is trying to answer it.
[Translation]
Mr. Lametti: To answer your question, we believe this is an appropriate distinction since children are especially vulnerable.
That being said, senator, with this bill, we are trying to protect the registry, which was created by the Supreme Court.
Senator Boisvenu: Do you have a legal opinion about it not being contested for cases involving children?
Mr. Lametti: We are applying the Supreme Court decision which says that the former registry was unconstitutional. With all due respect, Senator Boisvenu, we are trying to protect the registry by creating the basic presumption of registration for everyone.
Senator Boisvenu: But you are leaving women out.
Mr. Lametti: We are not leaving women out. The basic presumption of registration is in the bill. We are sending the message that it is very serious. With the measures in place for this type of offence and the other measures we are taking here, we are sending quite a clear message that it is serious. That is why the ombudsman attended the announcement to support this bill. We are sending quite a clear message.
[English]
Senator Pate: Thank you, minister, for helping clarify my previous, less articulate comment of basically increasing the maximum sentence as well as — sorry, I realize you are voting.
Mr. Lametti: I promise the chair will stop the clock.
Sorry about that.
Senator Pate: Thank you. Increasing the maximum sentence provisions and putting the onus on the accused creates the impression of taking these approaches more seriously, which I understand. The fact that it is predominantly those who are marginalized who end up before the courts with convictions is a part of what I have been trying to get at, and I appreciate that I was less articulate. Hopefully, I am a little more so now.
How do we ensure that what we know is the evidence, that, in fact, it is the modelling of behaviour and the other interventions that really better interact and better disrupt, if I can say, recidivism or prevent recidivism, yet these provisions will create — it is unclear what the actual burden is on the accused. If you have someone who is poor, who is racialized, the burden, in effect, will be greater on them to try and create this, particularly if they are self-represented or represented by Legal Aid and without the resources that some of the accused bring to bear, most of whom end up at the Supreme Court of Canada, not most of whom end up in prison versus the others.
I am just curious how you have weighed that and how you see ensuring that judges have adequate information so we’re not seeing the continuation of the discriminatory patterns of sentencing that currently exist in this area?
Mr. Lametti: Thank you, senator. I share those concerns, as you know. There are two parts to the answer.
The first is that we will get better data, and we have planned a review in a fairly short period of time, just over a year down the road, again, to directly assess the continued relevance of the register in a more profound way, and hopefully the data picture will be better.
With respect to sentencing, I would imagine that the same kinds of factors that ought to be applied at sentencing, for example, R. v. Gladue factors; again, they are going to be part of the arguments that an accused can make with respect to arguing not to be on the register — well, at this point, the convicted person would make with respect to not being on the register.
We will work on the guidelines with respect to the exercise of discretion. But I share that concern, and I do not want this to be another vehicle for, in a sense, an aggravating factor with respect to an already present over-representation of marginalized people in our system.
Senator Pate: Thank you.
The Chair: Just a thought on that, it seems to me that that would be valuable information to know who applies to try not to be put on the register and what kinds of successes they have or not, variable by categories of person, and that would help to indicate whether this is unintentionally burdening some sectors of society and not others.
That was not really a question.
Senator Klyne: Minister, what rehabilitation programs are, or will be available to individuals registered in the National Sex Offender Registry to ensure that they are unlikely to reoffend when the obligation to be registered ends, and what oversight will prevail to audit the implementation and execution of such rehabilitation programs?
Mr. Lametti: For better or for worse, senator, the Correctional Services Canada aspect of this falls under the Minister of Public Safety.
Senator Klyne: That is a shame.
Mr. Lametti: I don’t always like that distinction, and I think I would share with some of your colleagues around the table — Senator Pate in particular — the desire that we bring substantive reforms to that correctional system.
That being said, we can undertake through the Minister of Public Safety to see what kinds of programming might be currently available, and that would then give you a better idea of what one might be able to suggest to improve it.
Senator Klyne: That’s a suggestion. Thank you.
Senator Dalphond: To conclude, I understand that sexual offences related to children will be automatically put on the register, because the analysis of the department is that it meets the test of section 1 of the Charter?
Mr. Lametti: Yes, serious offences with respect to children, with “serious” being defined as over two years.
What we don’t want to catch is someone who might have been 17 and in a relationship and turns 18, and the other person in the relationship didn’t turn 18. We don’t want to catch that, so it is two years. Serious offences against children, I hope that is something that we all feel is a heinous crime. We feel that that narrow band of crimes is something where we can maintain the automatic register. I think the approbation of society would be with us on that, as well as the Charter balance.
The Chair: Minister, I overlooked Senator Batters in the second round, briefly. She has promised to have a short question on this bill.
Mr. Lametti: Please do.
Senator Batters: Just on the answer that you just gave, minister, did you mean that not all offences dealing with children would be included but only ones where the penalty is two years and up?
Mr. Lametti: That’s correct.
Senator Batters: Wow. Okay. Thank you.
Mr. Lametti: I would add, though, that there is still a presumptive registration. It is the automatic registration to which we are referring.
The Chair: This ends our session with the minister. Let me thank Minister Lametti and all colleagues for their questions and discussions with the minister. We will continue our discussion with the officials.
Mr. Lametti: Thank you, everyone.
The Chair: Colleagues, we re-welcome Mr. Taylor, Ms. Wells and Ms. Desharnais to the table. You are in the minister’s hot seat, so maybe we will try to direct all our questions to you.
We will begin this round of discussion with Senator Pate.
Senator Pate: Thank you very much for continuing on. I’d be interested, if it is not in the GBA Plus analysis or the Charter statement, in all the data you had in terms of the numbers of people on the registry now, the number of challenges to the registry, the disaggregated data that applies to those who are on the registry as well as those who challenged. That would be extremely helpful to have. If you don’t have it, it would also be useful to know that as we go into further discussion of this bill.
Joanna Wells, Acting Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: I can certainly share the data now about the number of offenders on the registry. I’m not sure of the availability of the data on the challenges to the registry. We can endeavour to confirm that. Please give me a second to find them.
According to the RCMP — and these numbers are current as of yesterday — there are currently 63,528 offenders in the National Sex Offender Registry, of which 43,786 are still under reporting obligations. Some of the information remains in the registry, but there is no longer an obligation on these individuals to report.
We know that 45,847 of those are categorized as child sex offenders in that they committed their offences against someone who is under 18. Of those 45,000, 32,098 are still under active obligation.
Senator Pate: Do you know the breakdown by gender, race and region of the country?
Ms. Wells: It probably won’t surprise you that the majority are men; ninety-nine per cent of those are men. I believe 64% are White. Indigenous people represent 20% of those individuals. Black people represent 4%.
Senator Pate: Thank you. Do you have it by region as well?
Ms. Wells: We do not.
Senator Pate: Is that available, do you know?
Ms. Wells: We would have to check with the RCMP.
Senator Pate: That would be great. Thank you.
The Chair: Ms. Wells, would you be able to share that in written form, the information just provided?
Ms. Wells: We would be able to, yes.
[Translation]
Senator Boisvenu: I have a few technical questions.
On my earlier question about a victim who is subject to a publication ban but discloses information by accident, are we sure that the victim is not committing a crime?
Mr. Taylor: As I already said, it is difficult to answer that question because it depends on the facts in each case. If the victim does not know there is a publication ban, for instance, it is a question of mens rea.
Senator Boisvenu: I understand. If a victim tells her family what happened, and someone decides to report her, is that a crime?
[English]
Mr. Taylor: It’s a challenge, and I’m not trying to avoid answering the question. Part of the challenge is because there is not a lot of jurisprudence case law that looks at these issues.
What I can say, for example — as I think Senator Simons said — the concept of “publish” certainly doesn’t apply in that context because the idea of publishing is to make available broadly, to disseminate that information broadly.
The challenge — and this is where my hesitation comes — relates to the other parts of the provision that deal with transmission. In some decisions, “transmission” has been interpreted quite broadly. If it is, in fact, interpreted broadly, then yes, Senator Boisvenu, that is a concern that exists. I think it is for that reason that Minister Lametti has expressed his openness in trying to clarify these issues a bit more.
[Translation]
Senator Boisvenu: It is the same principle as with the publication ban for a victim who needs therapy. If a victim tells a doctor all the information relating to her case, does the act protect that victim?
Mr. Taylor: I think that is the same situation as what I already explained.
Senator Boisvenu: But it is unclear because there could be a complaint and the victim could be investigated; she is not automatically cleared, from what I understand.
Isabelle Desharnais, Counsel, Criminal Law Policy Section, Department of Justice Canada: Victims are not prohibited from talking about their case. The publication bans apply to any publication or transmission, so two people discussing the matter with each other are not subject to publication bans and are not violating a publication ban.
Senator Boisvenu: Does the same thing apply even if the victim is talking to a friend?
Ms. Desharnais: A private conversation does not fall under the definition of publication or transmission, as stated in the bill.
Senator Boisvenu: I see.
Ms. Desharnais: As Mr. Taylor noted, once an email or decision is sent, and the person identifies herself as the victim, it links her to the court file, but a conversation between two people is not covered by the general objective of the provision on publication bans.
Senator Boisvenu: If a person is in the registry, there are certain conditions attached to that. Among other things, if they move, they must notify the police. There are conditions to be met, such as not being close to a school.
The Criminal Code does not however include any provisions regarding a person who does not meet their obligations. There is nothing in the Criminal Code stating that the person could be accused of something, for instance. That has not been corrected in the current act either, if an individual moves and we lose track of them for four or five years.
I was in Alberta where a woman and a child were murdered by someone in the registry, who was close a school and never notified the police after moving six or seven times. There is nothing in the Criminal Code that would allow for charges against that person. The Criminal Code does not say anything about this, is that correct?
[English]
Ms. Wells: There are certainly tools available to the criminal law to monitor high-risk offenders. You are correct that there is nothing in the code that would restrict the residents.
Senator Boisvenu: Having been accused —
Ms. Wells: If you have only been accused of an offence, you are correct that there is nothing in the code that would address that. However, there are other issues for individuals who are under sentence, for example, to be monitored.
[Translation]
Senator Boisvenu: In other words, there are some 60,000 sexual predators in the registry, isn’t that true? Those figures are from earlier.
[English]
Ms. Wells: There are 60,000 people on the registry who have been required to register. It wasn’t 60,000 that were still under active obligations.
Senator Pate: It is 43,000.
Ms. Wells: Thank you, Senator Pate. It is 43,000 who are currently required to comply.
[Translation]
Senator Boisvenu: Those individuals can clearly not be tracked by the police. Further, you are saying that there is nothing in the Criminal Code to crack down on those predators who do not comply with the registry conditions. Isn’t that a weakness of the bill? Should it not have included stricter mechanisms for non-compliance with conditions?
Those people know that if they move without notifying the police and go near a school, they are not too worried. In this regard, the registry does not have a deterrent effect; rather it is informative. If a crime is committed, the police will search the registry and see the person’s name in it, but the registry does not have a deterrent effect.
[English]
Ms. Wells: I think I understand better your concern now, senator.
I would draw your attention to three elements of Bill S-12 that may address some of these concerns. There is a proposed warrant provision to encourage compliance with the registry. As you know, the registry requires individuals to report certain information on a regular basis. If they are not compliant, the current process — the only thing available to police — is to arrest them and lay a charge for failing to comply. There are two offences in the Criminal Code for failing to comply with the Sex Offender Information Registration Act or providing false information. That doesn’t necessarily result in compliance. It doesn’t mean their information is up to date.
Bill S-12 proposes a new warrant that would give police the power to arrest someone, bring them to a reporting centre and provide them with the opportunity to comply. If they comply, a charge would be precluded, because the objective is compliance and not the administration of justice breaches. There is a proposal in Bill S-12 that addresses that concern.
The Chair: Senator Boisvenu, I think I’ll have to ask you to leave that for the second round. It’s such a fascinating conversation that we lost track of time. We’ll pick it up later.
I’d like to ask a couple of informational things related to Senator Boisvenu’s line of inquiry.
The first is whether you have information about the numbers of people, for example, who have been charged with failing to provide the kind of information that is required among those 43,000 that Senator Pate noted. Is it a common occurrence that people get charged?
Second — Mr. Taylor, you were responding to this — how often are people charged in circumstances where they have published the information contrary to a publication ban? Do we have that information? I understand these are prosecutorial discretion kinds of situations, but do we know? This seems to me to be valuable information that would benefit you but also benefit the committee.
Ms. Wells: We don’t have specific data on how often those charges are laid. We know that it happens. We also know that these can be cumbersome and burdensome charges to lay when the ultimate goal is compliance with the registry.
To answer your question in short, I don’t have that data. We could ask Statistics Canada if they could determine how often people were convicted of those charges.
The Chair: This is not the sort of thing the Canadian Centre for Justice Statistics normally gathers, or it is? I see Mr. Taylor nodding.
Mr. Taylor: If there is a specific offence — so to answer your second question, in the context of publication bans, 486.6, we can get that data from the Canadian Centre for Justice Statistics. We would be able to do the same in terms of the SOIRA.
Anecdotally, I don’t think that charges involving a breach of a publication ban where the breach is alleged to have involved the person who benefits from the publication ban — that is quite rare. I’m aware of one case which I’m sure you have heard of as well. The concern typically is how can it be revoked rather than “what do I do now that I have been charged?”
The Chair: If you were able to access that information and share it with the committee, that would be helpful. I have now used up all my time.
Senator Klyne: Welcome to our new panel of guests here.
How is our National Sex Offender Registry similar or different from other sex offender databases such as those used in Ontario, the United Kingdom and the United States? Another question attached to that — and this is more around best practices and lessons learned — what analyses have been undertaken to determine whether Canada’s National Sex Offender Registry is implementing best practices and lessons learned from other countries?
Ms. Wells: With respect to the Ontario provincial registry, they are very similar. They work very closely with each other. Individuals are often required to comply with both. They operate seamlessly together by sharing information to facilitate that operation.
With respect to other countries, most countries to which Canada usually invites comparison, have registries. The U.S. takes a different approach than the Canadian registry. In particular, they are mostly public and searchable, and they have many more restrictions on the activities of offenders who are on the registry. They take less of a rehabilitative approach than the Canadian Sex Offender Information Registration Act.
In terms of best practices, as the minister said, the government is undertaking an evaluation of the National Sex Offender Registry to ensure it is effective, to demonstrate its usefulness as a tool for police, and that will likely be part of that consideration.
Senator Klyne: Has an analysis or comparison been made yet on the other registries? Have we adopted anything from other registries?
Ms. Wells: That work would have been done early on when the registry was first enacted in 2004. As officials, we are always looking to the international community for ideas to see how they operate. But, in general, to date, the government has been comfortable with the Canadian model, which balances rehabilitation with public safety and —
Senator Klyne: So nothing new to adopt from others?
Ms. Wells: No. Bill S-12 specifically is responding to the Supreme Court of Canada decision in Ndhlovu case, as well as incorporating other elements from our —
Senator Klyne: There is another question here. This goes back to the numbers. What impact could amendments in Bill S-12 have on the number of people added to the National Sex Offender Registry each year? Related to this, what impact could the amendment in Bill S-12 have on those currently registered with the National Sex Offender Registry? Would you know how many people are likely to be impacted by the amendment?
Ms. Wells: Your first question, it is expected that it will decrease, the number of people who are required to register. Currently, it is everybody. The expectation is the discretion will result in some people not being required to register. The expectation is it will not be as low as it was in the regime that existed between 2004-11 when prosecutorial discretion was also a part of the regime. We don’t have a way of predicting the actual reduction in numbers. It is expected to be some.
With respect to your question about what happens to individuals currently on the registry, Bill S-12 proposes a mechanism by which people who feel they were put on the registry inappropriately can apply for relief based on the same criteria that are proposed for individuals who would be going on.
Senator Klyne: Did anyone do any analysis of the probability of how many will be impacted by that? The amendments.
Ms. Wells: We know there is currently 45,000 plus individuals who are under active obligation who could potentially seek that relief.
Senator Klyne: But no idea percentage-wise?
Ms. Wells: It would be very difficult to make that prediction.
Senator Klyne: Thank you.
Senator Busson: I want to go back to a question I asked when the minister was here around the issue of the publication ban. Again, it troubles me a little to try to get into the weeds, I guess, but still, the interpretation of the word “reasonable steps taken to consult” a victim when it comes to a publication ban and, we have heard, under other circumstances. The definition of “consultation” and “consulting” in the legal sense is still under debate under certain circumstances.
The minister’s answer was it would be consultation plus. I’m happy to hear that it is consultation plus, but I’m wondering if you envision any guidelines or any way of being a little more specific, because, of course, there are victims who are very forceful around wanting not to be treated like victims, but more like survivors.
Mr. Taylor: It is an excellent question, and consultation plus is a great way to describe it. When the bill was drafted, the idea behind this provision was to really signal to the justice system that — because these publication bans are sought to protect victims, it is imperative that Crown prosecutors make best efforts to seek the views of individuals who would be subject to the publication ban but, at the same time, provide the flexibility in the system when the administration of justice, as you know, is dispersed across Canada and the ability to contact a victim may be challenging at a particular moment, on the one hand, and, on the other hand, wanting to ensure that that victim’s interests are protected.
The idea here is to nudge the system to meaningfully consult a victim when that is possible to do so and then to seek their views. If their views have been sought and the victim doesn’t want the publication ban, the expectation is that information is going to be shared with the court and the publication ban wouldn’t be sought.
If the prosecutor doesn’t know or is not able to ascertain the victim’s views, the expectation is that they will seek the publication ban to preserve that victim’s interests and then, as soon as possible afterward consult the victim to confirm whether the victim wants the publication ban. If they do, then the situation is resolved. If they do not, then the expectation is, as with the other amendment, an ability to go back to the court and signal to the court that in fact, a publication ban is not needed in this case.
Senator Busson: That’s the answer I was hoping for. Thank you.
I had the same concern with the other question that I also asked the minister, in that the right to post sentencing information by the victim of these designated crimes. Would you be able to describe to me how Correctional Service Canada might respond to that obligation, because once that expectation is created, timeliness will be incredibly important in making that obligation meaningful?
Mr. Taylor: I can only maybe scratch the surface of that, and if my colleagues want to supplement, I would invite them to do so. Best bet would be, obviously, to seek the views of Correctional Service, but in terms of developing this legislation, as justice officials, we work closely with our colleagues in Public Safety Canada and Correctional Service Canada to develop this. I agree with you, I think there is a need for timeliness in terms of giving a fact to the spirit and meaning behind these provisions.
I will draw your attention to the fact that particular provision doesn’t come into force on Royal Assent. It would be brought into force through an order-in-council in the future. That is to provide our colleagues at Correctional Service of Canada with the time they need to develop their systems and processes to meaningfully implement that process.
Senator Busson: I would hope Correctional Service is alive to that necessity.
Mr. Taylor: Absolutely.
Senator Batters: In responding to Senate Boisvenu, I can’t remember who it was, stated something I wanted some clarification about. Does publication include email?
[Translation]
Ms. Desharnais: That was me. With your permission, I will answer in French.
When the order was amended in 2005, the objective was to include everything that happens online. That does include transmission by email of a decision, of a transcript that identifies the victim and links her to a case.
[English]
Senator Batters: Okay. If that includes emails, it could also include emails sent from the people who are the subject of the publication bans, the victims. I’m wondering, would it also include social media posts by these victims?
Mr. Taylor: I can start.
I think this is a challenge. I was trying to articulate that a bit to Senator Boisvenu earlier. Certainly, when publication bans were first codified in the Criminal Code the idea was very much focused on print media, newspapers, journalists reporting on stories. The concept of publish, which is in the provisions, is really meant to address that conduct. As my colleague said, this addition of transmitting changed the scope of the publication ban. We don’t have a lot of case law on this, as I said earlier. Certainly, some of the jurisprudence we have seen out of Alberta, for example, interprets the concept of transmission very broadly. That’s why I think Minister Lametti has indicated his willingness to try to address some of the concerns I think your intimating, Senator Batters.
Senator Batters: That is very concerning.
As we learned from Senator Busson’s second reading speeches, and there is some reference to this today, under the current regime many sex offenders don’t register. This is why this bill contains a provision intended to force those obligated to register as sex offenders to actually register, and as things stand now, and I believe it was Mr. Wells in one of her earlier answers today, the only mechanism available to facility compliance with the registry is to arrest the individual and lay a charge under the Criminal Code. But the prospect of being criminally charged is proving ineffective. So Bill S-12 goes further and creates this compliance warrant that allows police to arrest and bring a non‑compliant sex offender to a registration centre to fulfill their obligation. If the offender provides the required information, they will not be charged.
How does this get us any further? If the sex offender was non‑compliant in the face of a possible charge before, how will this new process which also culminates in a possible charge, something that 20% of these offenders really don’t care about, how will that be more effective? Is it the intimidation factor of being escorted there by the police? What is it?
Ms. Wells: I would first mention the recommendation to include this type of warrant was recommended to us by the provinces and territories. This is something they were hoping to include in the national registry. It is something that exists in the Ontario registry. Ontario indicates they use it frequently to encourage compliance. It is a criminal warrant; encourage might be too soft a word.
It is hoped that what it will do is facilitate ease. If people are not coming maybe there is a reason why they can’t come. I guess maybe the better option is it gets them to the reporting centre and provides them with the opportunity to do it. If they don’t comply, they will be charged. It is almost the first step. They can always be arrested and charged with the offence. But this is a way that would avoid the administration of justice charge and facilitate compliance. But, if they don’t comply, a charge can always be laid.
Senator Batters: Thank you.
Senator Simons: I want to return to the publication ban issue. I want to first clarify, as I say, having been a working journalist for 30 years, my understanding of this, and please correct me if I’m wrong, is that the primary way a publication ban is enforced is through contempt citations, not criminal charges. If you violate a publication ban, you are in contempt of court.
Mr. Taylor: There is a specific offence, 486.6, in the Criminal Code that can be charged for breach of a publication ban.
Senator Simons: Isn’t it more typically dealt with as a contempt citation?
Mr. Taylor: I don’t have that information. We can ask and provide that as part of the other undertaking.
Senator Simons: The issue of transmission. This was always a thing. In the olden days, only newspaper publishers and TV broadcasters and radio stations could publish. But with the rise of the internet everyone can be a publisher, whether they have a blog or Twitter account or Discord, Mastodon, choose your platform. I’m assuming, by putting in transmitting is what you are tempting to capture. Presumably those people could always have been charged under the old act but weren’t. You are chasing after anonymous accounts on the internet as opposed to going after Post Media or the CBC.
Mr. Taylor: A couple of things. As I said earlier, the concept to publish has the context of disseminating information to the general public. Transmission certainly overlaps with that. But the legislature at the time when the legislation was amended to include their broader concept, this additional concept of transmission was attempting to capture perhaps other situations of concern that maybe were not directed at dissemination to the general public but that still had the effect of undermining the objectives behind the publication ban provision in the first place. Certainly, I think we have heard and you have heard concerns around the way these provisions operate, unintentionally I would say. I think that’s what the bill is trying to get at, currently. As the minister said, he is open to trying to clarify that even further.
Senator Simons: One of the often unintended consequences of a publication ban on a victim’s name is you end up shielding the name of the accused. You end up having trials that happen almost in secrecy. You can’t name the accused because doing so might inadvertently name the victim. I’m wondering, where people can challenge this, to what extent that might be part of the judge’s consideration. It concerns me that sometimes the most heinous sexual offenders are never publicly named because of the publication ban.
Mr. Taylor: The first thing I would say is we know from the case law that courts have said that the publication ban is not meant to protect the identity of the accused. Secondly, that a victim seeks to revoke or vary a publication ban when a court is asked to consider that case law also confirms in Ontario that an accused’s views on that, they have no standing. We do have some case law on those points, complicated though where you have a situation where the victim themselves wants the publication ban to protect themselves. Then, as you say, the consequence of that could be the accused not having their name identified.
Senator Simons: I have to say, in 30 years as a journalist, I knew exactly one person who was charged with violating a publication ban. He did it unintentionally, not understanding. It was a case of a prison guard who was flashed by a prisoner. Neither he nor his editor understood that to be a sexual assault. He knows better now. I have to say he is now a lawyer, so it all worked out.
Senator Dalphond: Thank you to the officials for being here to answer more technical issues.
The warrant provision is provided at proposed subsection 490.03121(1). It is becoming worse than the Tax Act. It says, “If a justice is satisfied that there are reasonable grounds to believe that a person has contravened . . . .”
If someone is not providing his new address, for example, that’s a case. But in order to go to a judge or a justice of the peace for a warrant, you would have to know that he has moved, so it is limited. The system has to know that something has been breached in order to act.
Ms. Wells: There are, as well, corresponding provisions to the warrant that would allow sharing relating to these issues.
My understanding, from conversations with the RCMP, is that the majority of people who are not in compliance missed their annual reporting obligations. That seems to be more evidence that —
Senator Dalphond: Oh, I see. [Technical difficulties] — the system automatically.
Ms. Wells: That’s correct.
Senator Dalphond: I understand. At least once a year, there would be a check?
Ms. Wells: That is correct. The SOIRA currently provides the authority. The bill proposes to clarify the authority of the police to verify compliance by going and confirming that the offender lives at that residence, for example. That is another way to confirm compliance. If they go to the residence and nobody by that name lives there, then the police would know the offender is not in compliance. They would probably look to the registry for other ways to track them down, and a general police investigation would likely take place.
Senator Dalphond: What you are ensuring is the annual compliance?
Ms. Wells: My understanding is that’s the reason most people are not in compliance.
[Translation]
Senator Boisvenu: The Supreme Court ruled with five judges in favour and four opposed. They seemed to be unanimous about prohibiting registration for life. The dissenting justices agreed with that.
Nonetheless, the four dissenting judges stated that mandatory registration for a specific period, of 10 or 20 years, was not unconstitutional. The judges also said something interesting: that it is a very useful and important tool and that the decision to do away with required registration for sexual predators, even for short periods, would leave the police with one less tool to identify criminals.
As a result, with this act, the police are not as well equipped as they were in the past, isn’t that true?
[English]
Ms. Wells: As I said before, it is certainly expected that fewer offenders will be required to register. Whether that translates into less work for the police, I think the RCMP would be the best place to ask how that might impact their work in terms of the guardians of the information on the registry.
You are correct; it was a very close judgment, 5-4. Five judges ruled that it was unconstitutional, and four would have upheld it. It doesn’t change the result in the end, but it was very close.
[Translation]
Senator Boisvenu: That is bad news for women, though. Thank you, Ms. Wells.
[English]
The Chair: I would observe for all of us that the RCMP will be coming to testify. We might have an opportunity to follow up that question with them when they are here.
Senator Pate: My question follows up on the data issue. Do you have data available on how long people were on the registry before being taken off? How long are they on the registry, generally? Do those numbers exist?
What is the incremental increase? We’re currently at 45,847 on the registry. How long have those people been on it? How many are put on each year? I would be interested in monitoring the increase if it’s available. If not, can we request it, please?
Ms. Wells: To your first question, people are not taken off the registry. Once your information goes in the registry, currently, it remains in the database forever.
There is a proposal in Bill S-12 to reduce that period to 50 years. The RCMP has indicated that forever was too long; Fifty years is a more appropriate time. Even if an offender does not have an obligation to report, their information remains in the registry.
The length of the duration of an obligation to report is set out in the Criminal Code. It is related primarily to the maximum penalty available for the sentence for which a SOIRA order is made. That is always fixed; there are 10-year, 20-year and lifetime orders.
With respect to the incremental addition, it changes daily. I won’t guess. We did ask the RCMP this question a number of weeks ago. I cannot remember what it is, but we will endeavour to provide you with an average of how many people go on daily or weekly.
Senator Dalphond: Could you explain in further detail the difference between the automatic registration of the cases that are more serious involving children versus the older systems? There seems to be a general feeling that maybe people don’t have to register. Explain the mechanics. One is automatic, so there are no mechanics. It goes in the system. What happens with all the other cases?
Ms. Wells: I would be happy to do that. The proposal in Bill S-12 is that when a sentence is issued, another step in the process is to consider whether the offender should be required to register on the registry.
The current regime in the Criminal Code that was struck down by Ndhlovu said that everyone who was ever convicted of or found not criminally responsible for an offence had to go on the registry. No discretion. No further discussion.
The Supreme Court said that was too broad and captured too many people whose registration was not related to the purpose. So Bill S-12 proposes to respond by creating a presumption of registration for everyone, essentially. If you are convicted or found not criminally responsible, it is presumed you will register unless the individual can meet the two tests proposed in Bill S-12 — if their compliance were grossly disproportionate to their privacy interests or otherwise, or if their registration would not be related to the purpose of the registry.
That’s the general rule. Bill S-12 proposes to carve out two narrow categories for which automatic registration will still occur. As the minister indicated that is for individuals who commit offences against children, people who are under 18, for which the Crown proceeds by indictment and for which a sentence of two or more years is imposed. Those are very serious cases. It is a change that the government is confident will strike the right balance between public safety and the Charter.
The second category is for repeat offenders, for anyone who, in the past, has been convicted of a sexual offence or been required to comply with SOIRA — because, for example, they came from abroad. Those individuals obviously have reoffended once and are likely to offend again. The government is of the view that automatic registration is appropriate in those cases. That is the general framework.
Senator Dalphond: But for the other cases, would it be up to the person who was convicted of meeting the two criteria? So they would get a presumption that they should be registered?
Ms. Wells: Absolutely.
Senator Dalphond: And it is up to them to say, “No, I should not be registered.” It is not automatic, but unless they do something, they will be registered.
Ms. Wells: There needs to be evidence before the court that the registration would either be grossly disproportionate or overly broad and not related to the purpose of the registry. Or the presumption would override, and they are required to comply.
Senator Dalphond: And the onus would be on the convicted person to do that?
Ms. Wells: Yes.
Senator Dalphond: I think some people around the table do not understand that.
Thank you.
Senator Greenwood: Thank you for your comments today. I am new to this committee, so I have been doing a lot of listening.
As you were just explaining, I was thinking about offenders who have more than two years for child offences. In the registry, do they have DNA samples?
Ms. Wells: DNA samples are not part of the sex offender registry regime, per se, but the Criminal Code does contain a very comprehensive DNA regime. It operates separately from the National Sex Offender Registry, but the designated offences are almost identical. They are parallel regimes, and they are governed by different statutes, but they are both equally comprehensive.
Senator Greenwood: Will there be a time when those could come together? It seems to me that it would be very important if you have these offences that are particularly heinous, in some cases, that you have as much information as you can get.
Ms. Wells: That information is currently already available to police. It has never been suggested to us that there was a need to combine those two databases. I think police are fairly comfortable in using them both in their distinct lanes. There has never been a proposal that has been brought to our attention or that we have considered to combine them.
Senator Greenwood: Thank you.
The Chair: That brings us to the end of our session today. In that respect, Mr. Taylor and Ms. Wells, thank you for the time that you have, once again, spent with us.
Also, thank you, Ms. Desharnais, for your contributions.
This has been a very helpful discussion for us all, and I know we will see you again before too long on some other topic, but it has been much appreciated.
Colleagues, thank you for your engagement with the witnesses, and thank you to the staff who support us in this work. We would not be able to do this job without them.
We will continue the discussion and consideration of Bill S-12 tomorrow at the Standing Senate Committee on Legal and Constitutional Affairs.
(The committee adjourned.)