Moved third reading of Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act, as amended.

She said: Honourable senators, I am pleased to take the floor once more to speak to you about Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.

This bill has recently returned to this chamber following the study by the Standing Senate Committee on Legal and Constitutional Affairs.

I first want to thank the Department of Justice for their timely support, along with my amazing staff. I also need to thank all the senators of our committee for their comprehensive analysis of the bill and for their engagement with the bill’s important objectives, especially Senator Boisvenu, the critic, for his strong and compassionate commitment to championing the issues around sexual offences and intimate partner violence referenced so forcefully and emotionally on this special day of remembrance for him.

The committee made a number of amendments, which were reviewed in detail in a long and deliberative Monday evening meeting during clause-by-clause consideration of the bill. Some of these amendments were drafted by the government in collaboration with key stakeholders, many of whom testified at committee earlier this month. Others were proposed by individual senators. All, I believe, were part of a collective effort to strengthen the bill. Despite differences of opinion expressed, I remain strongly supportive of this legislation as a whole and urge senators to pass this legislation at third reading.

I will remind you all that because this government bill has originated here in the Senate, it will then be up to our colleagues in the other place to conduct their own thorough study of the bill after we hopefully present it to them as amended.

Bill S-12 responds to the 2022 decision of the Supreme Court of Canada in R. v. Ndhlovu, which struck down elements of the National Sex Offender Registry. In particular, it struck down the law that required judges to order all offenders to register, regardless of their risk level — thus violating the offenders’ Charter rights under section 7 — as being overly broad and not connected to the goals of the legislation.

The bill addresses this concern and also contains elements that would strengthen the sex offender registration regime to ensure it continues to be an effective tool for police, such as increasing the registrant’s obligation to report their intention to travel internationally from no advance warning to 14 days.

As mentioned in my second reading speech, these reforms do carry some urgency. If this bill is not enacted by October 28 of this year, courts will no longer be able to order offenders to comply with the National Sex Offender Registry. This will seriously undermine its effectiveness in protecting our most vulnerable citizens and thus negatively affect public confidence in the justice system.

I can’t overemphasize the seriousness of this situation, and hope that you are committed to acting with the necessary urgency required to respond to the Supreme Court’s decision that automatic registration for all individuals convicted of or found not criminally responsible on account of a mental disorder for a designated sexual offence is unconstitutional. The bill proposes judicial discretion in the form of a rebuttable presumption of registration.

In other words, a court must order registration on the sex offender registry unless the offender can demonstrate that their registration would be grossly disproportionate to the public interest or that their registration would not be connected to the purpose of the act.

It further proposes to retain automatic registration in two circumstances, namely, for repeat sexual offenders and for those who commit sexual offences against children in cases where the Crown proceeds by indictment.

I would like to take a moment to discuss in a bit more detail the policy rationale for why automatic registration should still be preserved in these two particular cases.

As a result of the decision in Ndhlovu, some judicial discretion was reintroduced in the sex offender registration regime in order to bring it into compliance with the Charter. That said, the government has been very deliberate in its efforts to put forward the most targeted and specific reforms possible while respecting the Supreme Court’s decision.

The two specific categories of offenders for which registration would be automatic reflect current social science evidence that demonstrates that these categories of individuals — namely repeat offenders and offenders who prey on children — are at a higher risk to reoffend.

In the view of the government, this represents a balanced and constitutional approach to automatic registration and responds to the Supreme Court’s concerns. The proposed enactment of a rebuttable presumption for all other offenders, including for those who commit sexual offences against women, would only direct courts to exempt an offender from registration if the offender could demonstrate it would unduly impact their rights under the Charter. I know that some of us would like to go further, but I believe the bill strikes the right balance and will ensure that the sex offender registry meets the Supreme Court’s benchmark and remains a valuable and constitutional tool for law enforcement to prevent and investigate crimes of a sexual nature.

The goal of this rebuttable presumption is to ensure registration except in the rare cases where registration would not be connected to the objective of helping police services prevent or investigate crimes of a sexual nature.

Another amendment made by the committee would ensure the application to offenders who are on the registry because of an offence committed abroad. As previously introduced, the bill contained a limitation that unintentionally limited the ability of some offenders from applying for relief. The amendment would ensure that these individuals would be able to apply to be exempt from registration in certain circumstances.

The bill also proposes a number of measures that would empower victims of crime through changes to the rules governing publication bans and a victims’ right to information.

A change was made by the committee to the publication ban provisions relating to the bill’s initial proposals to add the words “otherwise made available” to the list of conduct that is prohibited by the publication ban. There were strong concerns that this vague language might be construed as prohibiting the victim from discussing or communicating with their family, friends or therapist, and was removed from the text completely by an amendment. It also addressed concerns regarding material that’s in place from a prior publication ban.

Honourable senators, the objectives of the proposed reforms to the publication ban regime have received significant attention from victims’ and survivors’ groups and stakeholders across the country. The government, as well as the committee, focused specifically on the proposal that reasonable steps must be taken to ensure that the victim takes an active part in the imposition of a publication ban and in the process by which a publication ban could be revoked or varied.

The committee heard the informed and impassioned testimony of witnesses at committee, including from Suzanne Zaccour, Head of Feminist Law Reform at the National Association of Women and the Law; Morrell Andrews of My Voice, My Choice; and Pam Hrick, Executive Director and General Counsel at LEAF, amongst others.

Committee members heard from these witnesses that we must do better in listening to what victims and survivors of crime are advocating for. While many want the anonymity of a publication ban, others, for a variety of reasons, feel that they should have the power to decide whether or not their identities and their stories will be known, thus empowering them to regain the agency and control that had previously been taken from them by the original offences they suffered.

As a result of this feedback, the committee adopted a number of amendments related to these elements of the bill. First, these amendments build on the bill’s proposals that sought to ensure that victims were more directly involved in decisions concerning the imposition of a publication ban and any subsequent variation or revocation. Words like “consult with the victim” are now replaced with stronger language that directs the prosecutor to ascertain the victims’ wishes, using clearer language that sets out specific requirements for both the prosecutor and the court in regard to the imposition and variance of a ban.

In addition, the bill responds to concerns around victims being unable to share their stories with their loved ones. Some had argued that the current legal framework is paternalistic and interferes with the autonomy of victims to make their own choices. As amended, the bill addresses these varying concerns in a number of other ways, including ensuring that there is a clear and obvious path to having publication bans revoked and varied, a path that gives primacy to the interests of victims; clarifying that publication bans do not apply to certain conduct of victims and witnesses, including the sharing of information about one’s case where it is not done for the purpose of making the information known to the public; and making clear that prosecutions are only possible against persons who are the subject of a publication ban and who have allegedly breached it where they have knowingly compromised the privacy of another person who is the subject of a ban and where a warning is not appropriate.

In confirming that a publication ban is solely for the benefit of a victim or witness, the committee addressed the potential role of any accused in any proceedings for the future and in the process of a publication ban being varied or revoked. To that end, committee members made amendments to the bill that reflected that the applicant would not be required to notify the accused, nor would the accused be allowed to make representations during any varying or revocation process. Additionally, if the publication ban is modified or revoked, it is the prosecutor, not the victim, who would be required to inform the accused of this fact.

Clauses in Bill S-12 that reinforce the victim’s right to be informed by Correctional Service Canada officials when the accused’s situation of incarceration has changed remain an important part of the bill and were retained by the committee.

Honourable senators, this is an important piece of legislation made better by our careful study. I urge everyone to support its enactment as quickly as possible. Quite simply, the stakes for the victims, both now and in the future, are too high, and we cannot afford to delay. Thank you, meegwetch.

Honourable senators, I rise today to speak as critic at third reading of Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act, which was introduced by the Honourable Marc Gold, Leader of the Government in the Senate.

First of all, colleagues, I would like to acknowledge the work that members of the Standing Senate Committee on Legal and Constitutional Affairs did on Bill S-12, despite how little time we had to study it. I also want to thank the committee chair, Senator Cotter, who oversaw the debates and managed the committee’s time with the utmost respect for all members.

I would also like to thank Senator Busson for her kind words about me and, most importantly, for her work as Bill S-12’s sponsor.

I also want to acknowledge all the victims and families of victims who are with us this afternoon via SenVu to listen to this speech. Since coming to the Senate in 2010, I have spoken on behalf of thousands of victims who shared their tragic stories with me and told me what a poor job our justice system and our public safety system did of protecting and supporting them. Your courage and your resilience sustained me in advocating for your rights all these years. I am grateful for all the encouraging words you regularly send in support of my work.

This bill responds directly to the Supreme Court of Canada decision on the conviction of Eugene Ndhlovu, handed down on October 28, 2022. I must say that I am disappointed, but not at all surprised, that the Justin Trudeau government chose to wait until there were only six months left in the year to introduce its bill, when it was well aware of the October 28, 2023 deadline set by the Supreme Court of Canada for making the change to the Criminal Code.

As I said earlier, this means that we were unable to study all aspects of the bill, more specifically those involving the changes related to the National Sex Offender Registry.

That being said, honourable colleagues, I would like to focus for a bit on the topic of sexual violence against women to get us thinking about this. I often hear fine speeches in the Senate about the importance of fighting violence against women and fighting sexual assault. Unfortunately, for the victims of that violence, all too often, these are just words followed by very little meaningful action, such as the adoption of legislation seeking to truly protect them, like Bill S-12.

Bill S-12 was introduced in response to the Supreme Court of Canada’s decision in Ndhlovu. This case, that made it all the way to the Supreme Court, involved a 19-year-old man who sexually assaulted two women at a party, where he touched both women’s private parts.

Despite these acts, which I consider serious and disturbing, one nonetheless gets the impression from reading the Supreme Court decision that including this offender on the registry can’t be justified considering the consequences it could have on his life. As a result, this was considered grounds for striking down the provisions requiring automatic registration of every person found guilty of or not criminally responsible for designated sexual offences, as well as the provisions requiring that certain violent offenders be included, in perpetuity, in the National Sex Offender Registry.

Personally, I’m wondering if we took the victims’ point of view into account, if we asked them whether they experienced trauma and whether they have suffered lasting effects from those assaults. Why weren’t they asked whether they thought the offender should be added to the registry?

This type of decision trivializes sexual violence against women in Canada and sends a negative message to those who have been the victim of a sexual assault and who are reluctant to report the perpetrator. That offender should be added to the National Sex Offender Registry because he is a sex offender. The acts that he committed are unacceptable in a society like ours that is governed by the rule of law. The goal is to protect women from future assailants.

Every day, many women are the victims of sexual offences that vary from inappropriate behaviour to aggravated sexual assault. There was no consent and these women are often very reluctant to report what happened to them to the authorities. One has to wonder why victims would have any confidence in our justice system when, unfortunately, they’re being told that a man who sexually assaulted two women at a party singled-handedly managed to get provisions of the Sex Offender Registry Act repealed, a law that was passed by Parliament.

Senators, would you have confidence in the justice system if you were those victims? I doubt it.

I would ask you, colleagues, to consider whether it is right that in 2023 a man convicted for touching the private parts of two women would not be registered in the National Sex Offender Registry. I would remind senators that the statistics on violence against women in Canada are alarming. Most sexual assaults are committed against women, with 37 incidents per 1,000 women, compared to five incidents per 1,000 men. That is seven times more women than men who are assaulted.

In 2018, Statistics Canada reported that 4.7 million women, or 30% of women aged 15 and over, reported having been sexually assaulted at least once from the age of 15. In 2021, just over 85% of sexual assault victims were women. The rate of sexual assault of Indigenous women is approximately three times higher than that of non-Indigenous women.

We know that Indigenous communities are overrepresented in the prison system and on the National Sex Offender Registry. This overrepresentation is too often and too easily attributed to our laws and statutes, particularly minimum sentencing requirements. I would remind you, colleagues, that since the Gladue decision, which was upheld by the Supreme Court and incorporated into the Criminal Code, the Supreme Court has twice reminded judges that they were not rigorously applying that decision, which allows for alternatives to incarceration. This situation is believed to be a major factor in the overrepresentation of Indigenous people in Canadian penitentiaries. In recent years, the Supreme Court has twice reminded judges that they must find alternatives to incarceration for members of Indigenous communities.

Generally speaking, the rate of Criminal Code level one sexual assaults increased by 18% compared with 2020. As for level two and level three sexual assaults, the most serious crimes, the highest rate since 1996 has been recorded in recent years.

I also urged committee members to be cautious when talking about recidivism rates as justification for not requiring registration.

I would point out that the Auditor General released a report in 2018 showing that the federal data on the calculation of recidivism was invalid because it did not include offenders who had received a sentence of at least two years or those who had been convicted by municipal courts.

In light of the statistics I just cited, I believe it is our duty and our responsibility to take action to protect women in Canada. In its response with Bill S-12, the government has chosen to automatically include in the national sex offender registry only child sexual offenders and repeat sexual offenders, which is clearly inadequate given the serious and concerning statistics that I just gave you on violence against women in Canada.

Women are the primary victims of sexual assault. A man who is sentenced to more than two years for a sexual offence against a woman should automatically be placed on the registry, as he would be if the offence involved a minor, so that he is properly monitored by the police to prevent him from victimizing others. A federal sentence for these assaults is in and of itself indicative of the seriousness of the crime and the high risk of reoffending.

Colleagues, although the objective of monitoring is important, this is also a matter of principle. It is extremely important that we take the safety of women in our country seriously, as I’ve said time and time again in this chamber over the past 14 years. Take, for example, the recent case of a sex offender who was sentenced to three years and nine months in prison on April 11, 2023. From January 7 to June 5, 2022, this man assaulted six women between the ages of 30 and 65 in Sainte-Catherine-de-la-Jacques-Cartier, Saint-Raymond, Quebec City and Lévis.

Three years and nine months for assaulting and traumatizing six women! I want to speak out about the permissiveness of our justice system, which is soft on these criminals. No wonder the statistics for sex offences are so high and no wonder women choose not to report their attackers.

Under Bill S-12, the offender I just talked about wouldn’t be automatically added to the registry. He would have a right to recourse, even though he sexually assaulted six women. That is worrisome and unacceptable.

To correct this flaw in the bill, I proposed an amendment to automatically include in the registry offenders who are sentenced to more than two years for sex offences against women. I find it deplorable that this amendment was rejected by the Standing Senate Committee on Legal and Constitutional Affairs. I honestly think that the committee lacked courage.

Some of my colleagues have expressed some reservations about the fact that this amendment might go against the Supreme Court of Canada ruling in the case I just mentioned. Let’s not forget that the Supreme Court doesn’t have a say in the work of legislators, under the principle of the separation of powers in a country governed by the rule of law.

For those who may have forgotten, judges don’t direct the work of legislators. I’d like to share a quote from well-known French philosopher Montesquieu in his 1748 work entitled The Spirit of the Laws on the importance of the separation of powers under the rule of law.

Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

In particular, I would note that four of the nine Supreme Court judges had dissenting opinions. Those four judges pointed out that, before inclusion on the registry became mandatory, too many judges refused to require that offenders be registered, thereby making the registry less effective.

I would like to share some relevant numbers. When the 2004 legislation creating the national registry was being revised in 2010, I was surprised to learn that the percentage of sexual predators who were actually on the registry was relatively low and varied from one province to the next. The Canadian average was barely over 50%.

Numbers ranged from about 30% in the Maritimes to about 70% in the Western provinces.

This inconsistency does justice a disservice. That will be the case in the years to come.

In that regard, I would like to point out how pragmatic Quebec’s justice minister, Simon Jolin-Barrette, was in deciding to set up courts specialized in sexual violence and domestic violence. That initiative sent a clear message to victims that they are central to these important decisions. The judiciary publicly criticized him for this, especially the Court of Quebec’s Chief Justice, who had no qualms about trashing his bill. Nevertheless, Mr. Jolin-Barrette chose to listen to victims and played his part as a lawmaker to the fullest extent by getting his bill passed.

I would like to read you a very powerful quote from the statement he made when his bill was passed:

Today, we are sending a clear message to victims of sexual violence and domestic violence: You have been heard. Sexual violence and domestic violence have no place in our society, and we do not want a single other victim in Quebec to hesitate to come forward and file a report. The passage of Bill 92 marks a turning point and a major cultural change for Quebec’s justice system.

Unfortunately, I believe that we did not listen to the victims when we studied Bill S-12, as was the case for Bills C-75, C-3 and C-5. It seems to have become a habit. I am only a few months away from leaving the Senate, and this realization makes me rather pessimistic about the degree of consideration and concern you have for victims. If they don’t have the support of the men and women in this chamber, who will be their voice? What support can they count on?

Our role in the Senate is not to blindly follow the decisions of the Supreme Court of Canada, but rather to collectively reflect on the reality that we are facing and to design laws the same way an architect designs a building, by taking into account all of society’s difficulties, circumstances and needs. We choose our materials, meaning laws, based on our ability to meet people’s needs and to help them adapt to their circumstances and overcome their difficulties.

Today, we are going to pass a bill that is not adapted to the reality of crime in Canada. There were a lot more things that needed to be done to improve the National Sex Offender Registry, and I can already guarantee that by passing Bill S-12, we will be giving hundreds of sex offenders a free pass to target new victims. These women did not have to be victims, but they will suffer nonetheless, and that will perpetuate the lack of confidence in our justice system.

When this bill is reviewed in five years, I predict that you will be saying, “We should have done” this or that.

I speak from experience, because, believe me, no family wants to get the news one day that their daughter is dead because an unsupervised sex offender was in the wrong place at the wrong time. That is what happened to my daughter, Julie, when she was raped and murdered by a sexual predator. No doubt that offender would not have been in the registry because of the light sentence he received for the first sexual assault he committed.

In 2002, the National Sex Offender Registry did not exist. A few minutes before Julie was kidnapped, held against her will and assaulted, the sexual predator, who had only just gotten out of prison, was stopped by the Sherbrooke police twice, but they let him go because of inadequate information.

Violence against women is a serious issue, and we should never hesitate to create and use more firewalls if they save a woman’s life and spare victims and their families from lifelong suffering. Given the registry’s low inclusion rates between 2004 and 2010, I firmly believe that the precautionary principle should have guided our position.

An offender’s right to privacy should never take precedence over the right of Canadian women to live in peace and safety, and, above all, to stay alive. Too many sexual assaults shatter lives, and many go very wrong and can foreshadow femicide.

Dear colleagues, I do want to highlight the committee’s work on the second part of Bill S-12 concerning publication bans. The committee listened carefully to all the groups that testified, which led to the government making important amendments to Bill S-12.

From now on, the wishes of victims will have to be taken into account when the prosecution issues a publication ban. Bans will no longer apply if victims decide to share information about the case with loved ones or a therapist, provided the information isn’t shared with the public. The process to lift a publication ban has been simplified such that victims no longer need to take steps themselves with the justice system to have the bans lifted.

These changes align with the Canadian Victims Bill of Rights and help reinforce those rights.

Honourable senators, although the government has taken a step in the right direction to improve victims’ rights, this doesn’t go far enough considering how far behind we have fallen over the past few years.

This means that this small step isn’t enough to make this legislation a good bill. It is progress, but it is far from meeting the urgent needs expressed by victims and women when it comes to getting protection from sex offenders.

As I mentioned, there wasn’t enough time to do a thorough study of Bill S-12 or to hear more victims. We should have done a lot more to ensure that women in Canada are protected from sexual offenders when we had the opportunity to do so. This is more than just a simple question of a sex offender registry. It is a matter of life and death for many women, believe me.

The numbers I mentioned earlier in my speech reflect the reality of sexual violence against women in Canada. This is a serious, endemic and persistent problem. We need to do everything we can to protect our fellow Canadians. I’m often at a loss to explain how and why we don’t do more, when we could be taking action and making a difference for hundreds of victims across the country. I’m at a loss for words and I have no explanation when I receive messages of distress, disappointment and bewilderment.

Let me conclude by reiterating that, as legislators, we have a responsibility to the citizens of this country. We shouldn’t pass laws simply to respond to a court decision. We should pass laws because they are fair, because they are necessary and because they protect the most vulnerable members of our society.

It is time to take sexual violence against women seriously and give the authorities the tools they need to protect our fellow citizens. Unfortunately, Bill S-12 isn’t good enough.

Honourable senators, I urge you to ask yourselves this question: Can we do better for women in this country? Must we? I’m sure the answer is yes, so we have a duty to do so. Please join me in showing your support for women, for the victims who are listening to us today.

Thank you for your attention, colleagues. I hope that this debate has given us the information we need to make decisions that are good for the safety and well-being of all Canadian women. For too long, they’ve been forgotten, neglected and abused. They deserve justice, and we must deliver it. That is our duty as representatives of the people and as human beings.

Finally, to my daughter, Julie, thank you for being my inspiration and my strength in my battle and in the fight to end violence against women.

Thank you.

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to and bill, as amended, read third time and passed, on division.)