Justice Committee on Oct. 3rd, 2023

[The Chair, Liberal, Lena Metlege Diab]

Welcome, everyone. We are now in public.

We are pleased to welcome the Minister of Justice and Attorney General of Canada, the Honourable Arif Virani, to our committee for the first time.

Minister, welcome.

With the minister are the following from the Department of Justice: Shalene Curtis-Micallef, deputy minister and deputy attorney general of Canada; Matthew Taylor, who's been here a number of times before, general counsel and director of the criminal law policy section; and Joanna Wells, acting senior counsel, criminal law policy.

Thank you very much.

Again, welcome.

Minister, you are with us for an hour today. You have the floor for 10 minutes. As usual, you can begin with your opening remarks, which will be followed by questions from the members.

The floor is yours.

[Arif Virani, Liberal, Minister of Justice and Attorney General of Canada]

Thank you very much, Madam Chair. I'd like to begin by congratulating you on being elected chair of this committee.

This is my first time here as the minister, but it's not my first time here on the committee. I'm a regular. I'd like to thank the committee for giving me the opportunity to be here to discuss Bill S‑12, which proposes a series of reforms to the national sex offender registry and to the Criminal Code provisions pertaining to publication bans.

The publication ban reforms would give victims of criminal offences more autonomy with respect to publication bans and enhance their right to ongoing information. The reforms with respect to sex offenders would give more teeth to the national sex offender registry and be consistent with the Supreme Court of Canada's 2022 decision in R. v. Ndhlovu.

I am very pleased to see the committee recognize the urgency of this issue and begin a prestudy of this legislation. I thank you sincerely for doing that and taking that initiative. As you know, we are under a court-imposed deadline. If the legislation before us does not receive royal assent by October 28, sex offenders will no longer be able to be added to the sex offender registry. That is an outcome that I believe none of us wants to see happen.

I'll begin by discussing the reforms in this legislation that have been proposed by the victims and survivors of sexual assault and also by their advocates. I'm very grateful for the lived experiences that victims and survivors shared with my office as Bill S-12 was being developed. Very much thanks to their leadership, Bill S-12 will help craft a criminal justice system that better serves the needs of victims in Canada.

Bill S‑12 advocates a victim-oriented approach that empowers victims. It accomplishes this by requiring that courts and attorneys verify whether victims wish to be protected by a publication ban, and if so, that they be informed of the impact of a publication ban and their right to request its revocation or alteration.

Bill S-12 aims to eliminate the threat of prosecution for individuals when they share their own identifying information. Victims and survivors should not be prosecuted for telling their own stories. That is fundamental to the conception and understanding of this bill.

I want to thank committee members for showing leadership on the subject of publication bans. I know that this issue was examined by this very committee during last year’s victims of crime study, and many people in this room right now were participants in that study. I also know that many of you have met with and listened to members of a group call My Voice, My Choice, as well as other advocates. Support for these reforms, thankfully, crosses partisan lines. We now have the opportunity to get this package across the finish line in a timely manner that respects the deadlines imposed by the Supreme Court.

Upon further review of Bill S-12, the Senate made amendments to the publication ban reforms to respond to the concerns it heard from witnesses during the bill’s study. While these Senate amendments have generally led to a more robust bill, I am concerned about some of the amendments and would like to draw your attention to two of them.

First, an amendment was made by the Senate that would require the prosecutor to inform victims and witnesses who are subjects of a publication ban about the circumstances under which they could legitimately disclose information without facing legal consequences. While I appreciate the objective of a change of that nature, it does raise serious questions about prosecutorial independence and conflicts of interest.

Some of the very Crown attorneys who would be providing that advice would be the same individuals who would ultimately be handling a prosecution. I am very conscious of the fact that in this committee we have no less than three former prosecuting Crown attorneys, and I'm sure they may share some of the concerns that I have with respect to this proposed Senate amendment. In fact, I have already received correspondence from some provincial attorneys general raising this very concern.

Second, I am also concerned with the amendment to clarify what is or is not captured by a publication ban. As amended by the Senate, Bill S-12 currently specifies that individuals who are protected by a publication ban may disclose information about themselves as long as they do not identify another person who is protected by the same publication ban. The problem here is that sometimes there are victims or witnesses who are subject to different publication bans and who still may wish to keep their identities private.

I want to move now to other components of Bill S-12, so I'm moving away from the Senate amendments.

Another victim- and survivor-centric element of Bill S-12 relates to information that is received from the courts. Under the Victims Bill of Rights, victims can decide whether they want to stay informed about all case developments, like appeals or parole. They can also decide that they do not want to be contacted about the case. They have the right to move on and to not have to hear about it again.

Bill S-12 significantly simplifies and streamlines the process for registering for information by requiring judges to ask victims their preferences and by making receipt of ongoing information a simple box to tick on a form. I am grateful to the advocates who brought this issue to light, and would like to emphasize that this measure is a key priority of the federal ombudsperson for victims of crime.

I now want to outline the measures in Bill S-12 that relate to the national sex offender registry.

In response to the Supreme Court’s decision in Ndhlovu, Bill S-12 proposes to replace automatic registration with a presumption of registration, meaning that an order to comply with the registry must be imposed in all cases involving a sexual offence, unless the offender can show that registration would be grossly disproportionate or overbroad. However, the bill would retain automatic registration for two categories. The first is repeat sexual offenders. The second is those who commit sexual offences against children and are sentenced to two years or more of imprisonment, on indictment, even in the case of a first-time offender in that category.

Restricting automatic registration to these situations reflects current social science evidence that these categories of individuals are at a higher risk to reoffend in a sexual manner. This responds directly to the Supreme Court’s judgment in Ndhlovu that automatic registration is only justified for individuals who pose an elevated risk of reoffending. The court has called for the tailoring of this provision, and that is the tailoring we have done.

It is my view that including these individuals on the registry will always be related and proportionate to the objectives of the registry. Sexual offences against children are despicable crimes that I condemn in the strongest terms, and I presume all parliamentarians would condemn in the strongest terms. I'm speaking to you not just as the Minister of Justice or a member of Parliament from Toronto, but as the father of two young boys.

In addition, we know that repeat sexual offenders—that's the second category of those who would be automatically registered—are five to eight times more likely to reoffend than individuals who have non-sexual criminal histories.

There is another piece in the Ndhlovu decision that relates to mandatory lifetime registration. What Bill S-12 proposes to do is to allow a court to order lifetime registration for certain individuals. We are talking about people convicted of more than one designated offence in the same proceeding, where the offences demonstrate a pattern of behaviour that shows an increased risk of sexual recidivism. This addresses the concerns of the Supreme Court, while allowing lifetime registration in appropriate cases.

In addition to the proposals resulting from R. v. Ndhlovu, there are also some amendments whose purpose is to strengthen the offender registration regime as a whole and to make it more effective. These amendments include a requirement for registered sex offenders to give prior notice of at least 14 days for any travel, as well as a specific destination address. This gives the police more time and information to assess risks, and where required, to alert their international partners responsible for enforcing the act of an individual's travel plans.

Other key amendments include the addition of more offences for which an individual could be required to register, including the non-consensual distribution of intimate images and sextortion, and a new arrest warrant to address non-compliance with an offender’s registration obligations.

What I'm saying is that we not only revisited the issue of the sex offender registry, making it compliant, in my view, with the Supreme Court's guidance, but we are actually improving the registry, including the number of offences that would be captured by the registry.

The new arrest warrant is critical from a law enforcement perspective. Again, this is not a partisan issue but an issue that all of us take seriously. What I would emphasize to you is that many stakeholders have talked to my office about this bill, including law enforcement stakeholders such as the RCMP and the Canadian Association of Chiefs of Police.

What I will say to you is that they've said they would like the sex offender registry to be maintained. They see it as a very valuable tool for fighting crime, including for repeat sexual offenders. What they said to me—which was quite shocking, and I'll share it with you—is that the stats vary on a weekly basis. Between 46 and 75 times per week in Canada, names are added to the sex offender registry. That is quite staggering, but it would be more staggering to lose the ability to do that and keep Canadians safe.

I will conclude by saying that I'm convinced all of the reforms proposed in the bill would strengthen the national sex offender registry, comply with the Canadian Charter of Rights and Freedoms, and make the criminal justice system more responsive to the needs of victims of crime.

I hope that all parties in this committee and all parties in the chamber can work together to pass this legislation in the coming weeks, since time is of the essence.

Thank you, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Minister.

Mr. Moore, you now have the floor for six minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

Minister Virani, congratulations on your appointment. This is, no doubt, the first of many visits you'll have to the justice committee. We welcome you.

Minister, there's something I would like you to address at this committee. Since 2015, violent crime in Canada is up 39%, homicide is up 43%, gang-related homicide is up 108%, aggravated assault is up 24%, assault with a weapon is up 64%, sexual assaults—which go to the root of the issue that we have today—are up 71% and sex crimes against children are up 126%.

You're new as minister, but you are not new to the file, having served for some time as the parliamentary secretary to the minister of justice. There's a quote you gave that I'd like you to address. These are Statistics Canada numbers that I just listed. You said, “I think that empirically it's unlikely” that Canada is becoming less safe.

In the face of that non-partisan Statistics Canada information and hearing what, I'm sure, you're hearing from your constituents—the same as all members of Parliament are—which is that they feel Canada has become less safe, do you still stand by your statement that Canada is not becoming less safe in the face of those statistics?

[Arif Virani, Liberal, Parkdale—High Park, ON]

Thank you, Mr. Moore, for that question. Thank you for the work you've been doing on this committee for many years.

What I'd say to you is that there is a distinct problem with safety and crime in Canada right now. What I would say to you, with respect to the statistics that you've just read, is that I've been briefed on those statistics. I've seen those statistics, including things like the crime severity index, and I agree with you that we have a problem with crime in this country, particularly since the pandemic.

What I would say to you is that my fundamental job is to ensure that Canadians feel safe in their homes, in their communities, at work, at play and in their schools. That's one of the reasons I've been very pleased in the first two weeks of Parliament to have two justice bills come up for debate. One deals with bail reform, which all parties gave unanimous consent to and which will help keep Canadians safe, and the second would restore the sex offender registry, which will help keep people safe, specifically from sexual assault and sexual assault against children, which you highlighted in those statistics.

Is there a problem? Yes. Will this bill help address this problem? Absolutely.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Minister.

One thing I would take issue with...and I say this only because, for every witness we've ever had at this committee with regard to safety and restoring justice to our justice system in all the studies we've had, I haven't heard any of them blame the pandemic, as you seem to have just done, for this stratospheric rise in crime in Canada.

What I've heard them blame are policies that were deliberately instituted by your government, such as Bill C-75, which created the catch-and-release or revolving door to our bail system that's putting offenders back on the street, and Bill C-5, which says that if someone commits a sexual assault, they can serve their sentence from their home rather than from a prison as they should.

Minister, would you acknowledge that the measures that have been taken by your government—like Bill C-5 and Bill C-75—also could have an impact on rising rates of crime in Canada?

[Arif Virani, Liberal, Parkdale—High Park, ON]

Mr. Moore, this is where you and I will differ in terms of perceptions.

I believe that Bill C-5—and I was the parliamentary secretary at the time that was implemented—was meant to do multiple things, including addressing delays in the court system that were being pointed out by the Supreme Court in R. v. Jordan. It addressed things like reverse onus on bail for intimate partner violence. That is something that we not only believe in as a government but have doubled down on in terms of expanding the scope of reverse onus provisions in the current bail reform bill, Bill C-48. What it also did was entrench certain principles about bail that codified Supreme Court jurisprudence.

With respect to Bill C-5, Mr. Moore, again I will categorically disagree with you. Bill C-5 was about easing the overrepresentation of indigenous and Black persons in the Canadian justice system, in the criminal justice system. The effect of some of the mandatory minimum penalties that were enacted by the previous government under Stephen Harper was to overincarcerate indigenous folks on a sixfold basis and Black persons on a twofold basis.

On a day on which we've elected, for the first time in Canadian history, a Black Speaker of the House of Commons, I'm going to stand by our efforts to reduce racism in our system and stand by the efforts to reduce overrepresentation.

[Rob Moore, Conservative, Fundy Royal, NB]

Minister, thank you.

The decision that we're addressing here.... The Supreme Court stated that someone who is on the registry, an offender, is eight times more likely than the general population to commit a sexual offence. That is why a mandatory listing in the sex offender registry of those who are convicted of sexual offences and a mandatory lifetime listing of those who have multiple offences are so essential.

It was a 5-4 decision. In the dissent, it says:

It is also clear that it cannot be reliably predicted at the time of sentencing which offenders will reoffend. In the face of that uncertain risk, Parliament was entitled to cast a wide net.

Have you given consideration to casting a wider net? What has been carved out in Bill S-12 are some fairly narrow provisions that would result in mandatory listing in the sex offender registry when previously any conviction for a sexual offence was listed.

Have you considered casting a wider net?

[The Chair, Liberal, Lena Metlege Diab]

We're at six minutes. We're out of time, I'm afraid.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Would you like me to respond to that?

[The Chair, Liberal, Lena Metlege Diab]

I'm going to ask Madam Dhillon to start, and I'm going to leave it for her to decide if she would like you to answer that question.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you, Madam Chair. I would like to congratulate you on your new role. It's my first time speaking in committee in this session.

As well, to our minister, thank you so much for coming. Welcome to committee. It's nice to see you here. You may want to briefly answer the previous question or I can ask my own.

[Arif Virani, Liberal, Parkdale—High Park, ON]

I would be happy to. Thank you, Ms. Dhillon.

First of all, to Mr. Moore, the important takeaway from Bill S-12 is that the vast majority of individuals will remain registered. That's the first point.

I say that because there's an automatic registration in two categories, and for everyone else you're going to get registered unless you can demonstrate a rebuttable presumption why you shouldn't because it would be overbroad or grossly disproportionate. That's important.

Have we given it careful thought? Absolutely, we have, but the most reflection that I gave to the bill was simply the fact that the Supreme Court said, in its majority view, that lacking any judicial discretion is a violation of the charter under section 7, because it's overbroad and doesn't meet the minimal impairment test under section 1. Therefore, we had to make changes, and we've carefully tailored those changes in a manner that I believe conforms to the charter.

Thank you, Ms. Dhillon.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you, Minister.

You spoke about something incredibly important that is long overdue.

It's sextortion, which destroys lives not just in that moment but forever. It creates chaos in somebody's life and oftentimes leaves them in a very dark, negative place. I would like you to please tell us if these crimes have impacted Canadians in recent years and how this reform will help Canadians in cases of sextortion.

Thank you.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Thank you, Ms. Dhillon. That's a really important question, because it shows us, as parliamentarians, demonstrating that we're supple enough to respond to the needs as they exist right now. Sextortion is a very problematic situation that's affecting children and young people and also adults around this country.

The statistics that I've been shown from the Canadian Centre for Child Protection, Ms. Dhillon, indicate that they've received 3,400 reports of sextortion in the last year alone. That's 65 children victimized per week. That is unacceptable. Again, I speak to you as a father as well as a parliamentarian and the Minister of Justice that, with the advent of the Internet and smart phones, a lot of things happen, and sometimes unbeknownst to us. The fact that people are being made vulnerable in this manner is problematic.

The acute response in this legislation is that now those who must be registered on the sex offender registry will include offences such as sextortion itself. That's really critical. There is a rebuttable presumption, so you will be included unless you can demonstrate why you shouldn't be. That will help keep those kids safe.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Talk to us a little bit about why it would be detrimental if the deadline of October 28 were not respected.

[Arif Virani, Liberal, Parkdale—High Park, ON]

I'll just say, Ms. Dhillon, that this deadline is looming. It's at the end of the month. It would be detrimental, because the law enforcement community has reached out to me about bail, and we've responded with the bail package. They've reached out to me with respect to the sex offender registry. They've said that this registry provides them information that allows them to keep Canadians safe, particularly from sexual predators.

If by October 28 we do not have royal assent on this bill, we will lose the ability to add names to that registry. That is detrimental, particularly when you consider the staggering statistic I put before you that between 40 and 70 individuals every week are being added to this registry. It shows you the number of sexual offences that are being committed in Canada. It also shows you the need to make sure that we have a database of information to help law enforcement keep people safe from repeat offenders.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you very much.

Can you talk to us quickly about the compliance warrant? What would it allow? How has law enforcement reacted to this?

Thank you.

[Arif Virani, Liberal, Parkdale—High Park, ON]

The compliance warrant is an interesting one. The law enforcement community reached out and said that they not only want this registry, but they also want the ability to act on the registry. They said it's sometimes difficult to get offenders to provide the registry with their information or to update their information.

Bill S-12 will create a situation that authorizes the police to seek a warrant to arrest an offender who is non-compliant with their registry obligation and to bring them to a reporting centre to facilitate compliance. That's an important step. We don't want to have a situation where people are out there believing they can just flout the law. This compliance warrant measure allows us to provide an additional enforcement tool for law enforcement to maintain the integrity of the registry itself.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you.

I think I'm out of time.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Monsieur Fortin is next.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Madam Chair.

Good afternoon, Minister. I too would like to congratulate you on your appointment as Minister of Justice. The members of the Standing Committee on Justice and Human Rights will be pleased to work with you.

As you mentioned, we are at the pre-study phase with Bill S‑12, because it has not yet been referred back to us. I agree that it's a good idea to proceed in this manner. You were right to point out that the end-of-the-month deadline set by the Supreme Court of Canada would mean that it would no longer be possible to add sex offenders to the national sex offender registry, and that this would be problematic. We agree.

However, can you explain why the bill was only introduced in the Senate on April 26, 2023, when the Supreme Court decision dates back to October 28, 2022, almost a year ago? That means there were six months between the time the Supreme Court ruled that the act had to be amended and the introduction of the bill. Can you explain why it took so long, Minister?

[Arif Virani, Liberal, Parkdale—High Park, ON]

Thank you, Mr. Fortin, for your kind words and for your very important question.

In order to prepare the bill and respond to the Supreme Court of Canada, many groups and organizations had to be consulted. Indeed, we consulted 31 such groups, including police organizations and Crown lawyers, representatives of victims groups, women's groups, defence lawyers groups, child protection groups and groups representing the 2SLGBTQ and other communities. All of these consultations took time.

Time was also needed to draft a bill that would not only respond to the Supreme Court, but also broaden the application of current statutes to address issues like sextortion and the non-consensual sharing of a person's images. This was something we added after consulting people.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I understand what you're saying, and it makes sense to me. I'm sure that all kinds of consultations are needed before a bill like this one can be drafted. However, while everyone around the table agrees that it was urgent, it took six months to get around to introducing the bill. The Senate nevertheless managed to do some relatively rapid work on it because the bill was adopted on third reading on June 22, just prior to the summer recess. The Standing Committee on Justice and Human Rights could have been consulted during the summer to speed things up, but it wasn't. My understanding is that it had to go through the House and that this was complicated.

What I'm personally most unhappy about is how long it took for the bill to be introduced after everyone across Canada had become aware of the fact that there was an urgent situation. The Supreme Court told us what had to be changed, but six months were spent on consultations. Your explanation strikes me as credible, but I'm not sure that it's enough. In terms of credibility, I think the government was negligent for the first six months. And now, there's a push for the Standing Committee on Justice and Human Rights to speed things up and set things right. I'm displeased about it and just wanted to point that out to you.

Having said that, as I have approximately two minutes left, I'd like you to explain something to me. You mentioned in your opening address that there might be a conflict of interest if Crown attorneys were to be required, as stated in the bill, to inform victims of the consequences of a publication ban and of any failure to comply with the ban. I find this conflict of interest rather surprising and wonder whether you could take a minute to explain to me why this is a conflict of interest. Isn't the Crown attorney supposed to be making sure that everyone understands what's going on? I had always understood that the Crown attorney had nothing to prove. That being the case, I don't understand why there would be a conflict of interest. I'll let you explain it and even perhaps suggest an alternative solution.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Okay. There are several aspects involved in answering this, Mr. Fortin.

When we talk about conflicts of interest, it's one thing to explain what a publication ban is to a victim or to someone in court, but quite another matter to explain that if you do this or that, you might find that you have failed to comply with the ban. In such situations, the attorney is there not only to provide objective and neutral information, but also to give advice to the victim. It's the same office, and possibly even the same attorney, who may be there during the trial, if there is one, with the same people. Perhaps Mr. Caputo, Mr. Brock or Mr. Mendicino, who have experience in this area, could add further details.

In connection with your first point, I would say that in instances where lifting a publication ban is desired in a particular set of circumstances, such as empowering a victim, the situation is rather sensitive. Publication bans are often used to protect the interests of victims, while ensuring that they are empowered and able to make their own decisions. To address contexts like these, more time was needed to draft the bill.