Bill S-12

An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act

This enactment amends the Criminal Code , the Sex Offender Information Registration Act and the International Transfer of Offenders Act to, among other things,
(a) require compliance with the Sex Offender Information Registration Act for persons who are convicted of an offence of a sexual nature against a child and for persons who have been convicted on separate occasions of two or more offences of a sexual nature;
(b) require other persons who are convicted of, or receive a verdict of not criminally responsible on account of mental disorder for, an offence of a sexual nature to comply with that Act unless a court is satisfied that doing so would have no connection to the purposes of that Act or that the impact on the person of doing so would be grossly disproportionate to those purposes;
(c) provide that an order to comply with that Act as a result of convictions, or verdicts of not criminally responsible on account of mental disorder, for two or more offences of a sexual nature that are dealt with in the same proceeding — or an obligation to comply with that Act as a result of convictions, or such verdicts, for two or more offences of a sexual nature — does not apply for life if a court is satisfied that the offences do not demonstrate a pattern of behaviour showing that the person presents an increased risk of reoffending by committing such an offence;
(d) authorize a peace officer to obtain a warrant to arrest a person who has contravened any of sections 4 to 5.1 of that Act and bring them to a registration centre to remedy that contravention; and
(e) clarify the obligations in section 6 of that Act respecting the notice that sex offenders who plan to absent themselves from their residence must provide.
The enactment also amends the Criminal Code to, among other things, codify the process for modifying and revoking publication bans, and add a requirement for sentencing courts to inquire into whether the victim of an offence would like to receive information about the administration of the offender’s sentence and, in the affirmative, provide the Correctional Service of Canada with the victim’s contact information.

Court Challenges Program Act

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Madam Speaker, it is always a pleasure to rise on behalf of the people of Kamloops—Thompson—Cariboo.

Before I begin, I want to pass on my condolences and recognize the life of Eugene Dery from my riding. He leaves behind a son, who is approximately 20 years old, Dax, and his wife Kim Galloway, whom I met through my sister. I grew up knowing them and have known them throughout the years. I extend my deepest condolences to the family. May perpetual light shine upon him.

On a more positive note, I want to recognize Ethan Katzberg from my riding. Mr. Katzberg took home gold in the hammer throw. Good for him. We are obviously very proud of him. He is the one to beat, following in the line of Dylan Armstrong. We look forward to seeing Ethan at the Olympics doing his best to represent not only Canada but also Kamloops—Thompson—Cariboo.

We are here today to discuss Bill C-316, an act to amend the court challenges program. This is an interesting act when we think about it. In my research to prepare for my speech, I saw that the court challenges program has existed for a great deal of time. I knew that it existed, but I was not sure exactly how it had operated in the past.

One of the things that struck me is that this bill would enshrine the court challenges program into law. I know that my colleague from Lethbridge did an excellent job in her speech on this issue, but I will be addressing some of the points she made and perhaps some of the points that the sponsor of the bill made. I have some concerns.

The reality is that with this legislation, in my respectful view, we would be legislating an undermining of Parliament in a certain way. Parliament passes laws and the courts interpret them; there is no issue there, and frequently the courts will engage in a dialogue. I raised this with Justice Moreau of the Supreme Court of Canada, although I am not sure if she has been sworn in. She is the chief justice for Alberta for the time being if she has not been.

I asked her about the dialogue between Parliament and the courts. Parliament speaks through its legislation, the courts interpret the law and then Parliament speaks again if it needs to. This bill would essentially fund people to go to court to, in my view, look at ways that Parliament got it wrong. That is not to say the courts need any help. Frequently, the courts strike down legislation passed by Parliament, or they uphold it as constitutional, but those things happen irrespective of a third party like this.

From what I can see, this program costs $5 million at this time. It could be substantially more. By my estimation, about 30% of that alone is bureaucratic costs. We have been talking a lot about heating oil and things like that. How many heat pumps is the government going to buy for people? How many heat pumps would $5 million buy? Sometimes we lose sight of the fact that we often talk here in the billions of dollars.

A senior contacted my office not long ago saying they had to choose between putting food on the table and buying shoes. To them, $5 million sounds like a lot of money. I know it certainly was when my family came from Italy. They did not really have two pennies to rub together. Sometimes we lose sight of this.

Not only that, we would create a bureaucratic entity beyond asking people to challenge our laws. There is no issue with the idea that people disagree with what Parliament passes. It happens all the time. That is why the courts will make various decisions. However, this is done routinely when somebody brings an action to the court.

I am going to underscore as well that when we pass legislation here, it goes through second reading debate. Sometimes bills pass with unanimous consent, but very rarely will a significant bill pass that way. I think I have seen it twice so far.

Bills go through second reading debate and then go to committee. Who do we hear from at committee? We hear from witnesses. On the justice file, who are those witnesses? Invariably, they are lawyers, experts who will tell us what is wrong with the bill: “Your bill has this constitutional frailty in this spot and this spot.” Then someone else will come in and say, “Yes, I agree, but I don't think the frailty is here and here, I think it might be over here.” What do we do? We take that and go back, potentially through an amendment. At third reading, we have more debate, and then it goes to the Senate. What happens at the Senate? There is more debate. Then, eventually, we will have royal assent after it has gone through the machinations in the Senate and then it goes to the courts. There is this idea that Parliament does not have ample opportunity to get it right and to hear from the very lawyers who will be making these courts challenges.

However, these challenges are made supplementary to the actual challenge. What I mean by that is, for example, somebody who believes that they are aggrieved by the statute on charter grounds will say, “This offends my section 7 right to life, liberty and security of person”, and they will challenge the law on constitutional grounds. Frequently, I presume, this program will fund somebody to intervene. Well, somebody is already making that challenge in a lot of instances from what I can see, and so I question the efficacy of that.

The other issue I have is that this issue is run through a university. I used to teach at Thompson Rivers University and I will give a shout-out to them, but this is done through the University of Ottawa. Now, we will obviously have in a university faculty, particularly one like law, divides. Some people are going to have one view of the law and some people will have another view of the law. In here, we have Liberals, Conservatives, New Democrats, Greens and the Bloc. They are going to have different perspectives on how the world works, which is fine; actually, it is more than fine, it is central to a thriving democracy. However, the people who administer this program are going to be, through their perspective, deciding who gets these programs. Invariably, there will be winners and losers, and it does not seem to me that we know exactly how that is going to be administered, especially when it is being administered right now through a third party. That, in my view, does raise some issues.

The importance of people who are writing academically cannot be underscored. It is, in my view, central to anybody who is a professor, particularly a professor of law or political science. We do frequently receive feedback. We, as members of Parliament, are expected to take feedback on our laws. In my view, that is the correct mechanism by which we should be addressing these laws and not funding people who would not otherwise be in court on a matter of their own in doing so.

One of the issues that we have seen about this dialogue is that, in my view, this Liberal government has not necessarily acted well on that dialogue. For example, Bill S-12, the issue of the sex offence registry, was taken literally right down to the last day. It is how the courts work. The courts act and Parliament reacts. Parliament legislates, the courts interpret and it is up to Parliament to react. It took us literally months. We could not actually get this right. That is how things are supposed to be working. We can also look at this when it comes to that extreme intoxication case that we had to legislate on very quickly. However, sometimes, and this is one failing of the Liberal government of many on the justice bill, this Liberal government does not always react.

If we want to look at places where we should be devoting our resources, the courts have said that it is unconstitutional to have back-to-back first degree murder convictions and for parole ineligibility to be served consecutively.

I am out of time and so I will wrap it up there.

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

Very briefly, Madam Chair, I'd say that I believe firmly in the dialogue between Parliament and the court. I think it's fundamental to a constitutional democracy. I appreciate the work of this committee in ensuring that we met the deadline on Bill S-12.

With respect to the characterization of the decision by the court in Bissonnette, I don't share that characterization. I think the constitutional principles that the court stood by in that case are important. They're important for us to reflect on as parliamentarians.

Thank you.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Minister.

I agree with much of what you just said, except for the part about having the meeting chaired by a professor rather than our chair. I have every confidence that the people around this table and our Senate colleagues who serve on the Senate legal and constitutional committee would be able to have a meeting—as we do regularly—where we would have an interview. We do not have a veto. We don't choose who the Supreme Court appointment is; that's your role. You make that choice. Our role is to ask that individual questions and receive responses. I have confidence that our chair would be able to do that.

Minister, I want to ask you now about the dialogue between the Supreme Court—and this has been at the forefront in recent years—and the legislature. In our case, that is the Parliament of Canada.

There have been two recent cases. The Ndhlovu case dealing with the mandatory listing on the sex offender registry of those convicted of sex offenses was narrowly struck down by the Supreme Court in a 5-4 decision. The government responded, and this committee considered Bill S-12.

I'm on record to say that I think it was a tepid response. I think we could have gone further. We had moved an amendment that would have made it mandatory for all child sex offenders, all offenses against children, to be listed. However, that doesn't go to the point of my question. There was a government response.

Similarly, a year and a half ago, the Bissonnette case, which dealt with an individual who went into a mosque and murdered six people, struck down the provision in Canada that if you take multiple lives, you would have consecutive life sentences.

I know as a New Brunswicker that this hits home because of the experience in Moncton, where an individual killed three Mounties. Rather than being given a sentence discount for multiple murders, as was the case before, this individual got a 75-year parole ineligibility.

At our justice committee, the widow of one of the victims said that she took some comfort—

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

I'm not talking about keeping people safe, from the Bill S-12 point of view. I'm talking about keeping people safe generally.

This is a very clear question, with all due respect, Minister. Are you prepared to eliminate house arrest for people who commit sexual offences against children or have images of it in the form of child sexual abuse and exploitation material?

Yes or no? Will you plug that hole?

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

What I would say to you is similar to what I said at the time of that hearing. I appreciate that it was on a different bill, so I don't have all of my notes before me, but, with respect to Bill S-12, what we're trying to do is take a strong step in the direction of maintaining a sex offender registry to keep people safe from sexual predators.

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

Thank you.

It's good to see you in the chair, Mr. Moore.

Hello, colleagues. I hope you're all well. At the outset, I want to say thank you for the quick work on Bill S-12 and making sure that we met a court deadline and maintain the sex offender registry going forward.

Thank you very much for inviting me to speak to you about Bill C‑40, Miscarriage of Justice Review Commission Act (David and Joyce Milgaard's Law).

Bill C-40 proposes necessary and long overdue change to our criminal justice system, and it will indeed change lives. I'm grateful for the important work of my predecessor David Lametti in developing Bill C-40. I have every intention of fulfilling the promise that David Lametti made to David Milgaard and his mother Joyce to pass this important legislation.

I think we all, as parliamentarians, owe it to those people who have been wrongfully convicted, like David Milgaard and others. These errors cost them their freedom, their livelihood, their reputation and their time with loved ones. The errors are devastating to victims of crime and to their families.

This bill responds to long-standing calls from wrongfully convicted Canadians and their advocates. This issue has been studied extensively. Over decades, numerous commissions of inquiry have delivered one consistent recommendation to government: the creation of an independent commission dedicated to the review and investigation of cases when a miscarriage of justice that may have occurred is warranted.

Other countries have done this already, so we're not charting new territory here. Independent criminal case review commissions have been established in the jurisdictions of England, Wales and Northern Ireland; in the jurisdiction of Scotland; and in the jurisdiction of New Zealand.

Bill C-40 is shaped by a broad public consultation process that took place during summer 2021, involving more than 200 individuals and groups with experience and expertise in the area of criminal justice. That process was followed by further consultations with the provinces and territories, judicial organizations, national indigenous organizations, organizations from Black and other equity-seeking communities, and various bar associations.

One of the key findings of the consultations is that commissions in other countries are able to process applications far faster than in Canada's current system. This means that countries with an independent commission have fewer people spending time behind bars for crimes they didn't commit. That in and of itself is incredibly significant.

In Canada, our wrongful conviction regime was last amended in 2002.

I'll just note parenthetically that this power has existed in one shape or form in the hands of people, who were my predecessors going back to 1892. We're talking about a change to the executive prerogative in this area that dates back to the time when the first Stanley Cup was awarded over 100 years ago.

Since 2002—I was just referencing the last time this was amended—just over 200 applications for review have been submitted. You've heard Ms. Gazan mention that there have only been 26 successful referrals back to the courts through the ministerial review process.

Let's compare that for a moment with a country that has an independent commission. The United Kingdom is a great comparator. They have referred 822 cases in the same time period, with 559 appeals successfully overturned. With a population that is just about half of the U.K.'s, I think that contrast is very powerful. Further, I would note that in all but five of the 26 successful Canadian applications that Ms. Gazan mentioned, the individuals were white and not racialized. In every single one of the 26 successful applications the individuals were male.

That bears no resemblance whatsoever to our prison populations. Black and indigenous persons, who we all know are overrepresented in our criminal justice system, need equal access to this process, as do women.

An independent commission devoted exclusively to reviewing potential miscarriages of justice will both increase trust in the review process and improve access to justice by facilitating and accelerating the review of applications from persons who may have been wrongfully convicted.

A commission with five to nine full-time or part-time commissioners, in addition to staff, will be able to review applications more quickly. Recommendations for the appointment of commissioners will have to reflect the diversity of Canadian society and also consider gender equality and the overrepresentation of certain groups in the criminal justice system, specifically indigenous and Black individuals.

The bill requires the commission to deal with applications as expeditiously as possible—this was mentioned by Ms. Besner—to provide regular status updates, and to provide notice to the parties, as well as to provide them with a reasonable period of time in which to respond. The bill also requires the commission be accessible and transparent.

It will adopt and publish on its website procedural policies to guide its work. It will have a dedicated victim services coordinator to support victims and assist with the development of procedural policies, especially as they relate to victim notification and participation.

These are essential measures to facilitate the proper support for victims, which I know is a keen concern of yours, Mr. Chair, in terms of the work you and I did on this committee previously.

I think it's important to understand that, obviously, victims can be doubly traumatized by the notion of a miscarriage of justice having occurred and the fact that the actual perpetrator of the crime against their families remains at large.

To help address systemic issues and prevent miscarriages of justice from occurring, the bill directs the commission to carry out outreach activities, such as the ones I mentioned to Ms. Gazan; provide information about its mandate on the miscarriage of justice to the public and potential applicants; and publish its decisions. Commission staff will be empowered to provide applicants with information guidance. The commission will be able to provide reintegration supports to applicants in need. The commission will be able to provide applicants with translation and interpretation services, and to help applicants obtain legal assistance and the necessities of life, such as housing and medical care.

All of these elements are essential. A commission that conducts outreach and assists with applications recognizes the systemic barriers faced by applicants in the current system. It is in everyone's best interest that wrongful convictions be remedied. Indeed, I would posit that there isn't a single one of us, among the 338 occupying the House of Commons, who would advocate for a wrong conviction in any context. Therefore, the proactive nature of Bill C‑40's commission will ensure that no applicant is excluded from accessing this process because of a lack of resources or the inability to apply.

My officials have been briefing you on the technical changes this law reform proposes, but there are a couple that I would like to highlight in particular.

One is with respect to investigative powers. The commission will have the same powers of investigation as I do as Minister of Justice under the existing regime. These powers are found in part I of the Inquiries Act and can be used to compel the production of information or evidence relevant to an application, and to examine witnesses under oath. These authorities will ensure the commission can gather the information it needs to complete a thorough case review.

The second change I want to highlight is this: Bill C‑40 will modify the threshold to proceed with carrying out an investigation. Similar to the existing regime, the commission will be able to conduct an investigation if there are reasonable grounds to believe a miscarriage of justice may have occurred. The commission will also be able to conduct an investigation if it considers that it is in the interest of justice to do so. This is the precise approach used in Scotland and New Zealand.

With respect to the final decision—not the investigation entry point, but the final decision—Bill C‑40 introduces a new test. The commission will be able to refer matter to the relevant court of appeal, either for a new appeal or to direct a new trial or hearing when there are reasonable grounds to conclude a miscarriage of justice may have occurred, when the test is conjunctive, and when it is in the interest of justice to do so. It is a test with two criteria, not one. This test replaces the current standard, which is that a miscarriage of justice likely occurred.

If the proposed new legal test is not met, the commission must dismiss the application. The remedies in the bill are the same as those currently available in the existing process: a referral for a new appeal or a direction for a new trial or hearing. The commission will not have the power to quash a conviction or determine the issue of guilt. Those are decisions that will always remain with the courts.

Bill C‑40 sets out the factors the commission will have to consider in making its decisions. The factors currently stipulated in the Criminal Code that relate to the administration of justice are reproduced in Bill C‑40, and two new factors are added relating to the particular circumstances of applicants.

That is, it's specifically looking at the personal circumstances of the applicant and distinct challenges they may have faced, with particular attention to the circumstances of Black and indigenous accused.

I believe firmly in our justice system. Its quality is the best in the world. However, we also know that miscarriages of justice occur. Often they are only discovered long after the criminal court process has concluded. These experiences erode the public's trust in a justice system that is meant to protect them. This bill is a significant step forward in restoring that trust and confidence in the system. It is named after David Milgaard, who spent 23 years of his life serving time for a crime he did not commit, and for his mother, Joyce, who never gave up the fight for his freedom.

Bill C-40 honours David and Joyce's legacy by creating a system that will lead to more exonerations of the innocent.

Thank you.

Criminal Code

[Darren Fisher, Liberal, Parliamentary Secretary to the Minister of Mental Health and Addictions and Associate Minister of Health]

Madam Speaker, I am pleased to join the second reading debate of Bill S-205, an act to amend the Criminal Code and to make consequential amendments to another act. I am pleased to reiterate the government's support for Bill S-205. This legislation has the important goal of better protecting victims of intimate partner violence.

In light of last week's tragic instance of intimate partner violence in Sault Ste. Marie, we are reminded of the devastating impact these crimes have on individuals and communities. My heart breaks for the senseless loss of life in Sault Ste. Marie, and I am thinking of the victims' loved ones. Intimate partner violence and gender-based violence in general have no place in Canada. I know my colleagues from all parties share this sentiment.

Bill S-205 would make changes to the Criminal Code's bail and peace bond regimes in order to address intimate partner violence. The bill would also make consequential amendments to the Youth Criminal Justice Act. These are important objectives. Today, I will elaborate on some concerns that we have with this bill and how we think it can be improved. I will also discuss our government's most recent complementary efforts to support victims of intimate partner violence and victims of crime in general.

As my colleagues have mentioned, Bill S-205 would require prosecutors to ask courts whether the victim has been consulted about their safety and security needs prior to making a bail order for an individual who is charged with an intimate partner violence offence. In addition, Bill S-205 would require courts to ask prosecutors whether victims have been informed of their right to request a copy of the bail order made by the court.

The next element of Bill S-205 that I would like to highlight is the expansion of a reverse onus for bail on intimate partner violence crimes. The reverse onus would be expanded so that it applies not only to accused persons who were previously convicted but also to those previously discharged, conditional or absolute, for an intimate partner violence offence. This particular measure is also contained in our government's bill, Bill C-48, which already passed this House and is awaiting third reading in the Senate. We were certainly concerned to see that the senators voted to remove this measure from the bill, and I hope that my colleagues agree that we should reinstate it in Bill C-48. This provision builds upon previous government legislation that enhances our federal response to intimate partner violence, including former Bill C-75. I hope this House rejects the amendments to Bill C-48.

Next, Bill S-205 would require a justice to consider, on request of the Crown, whether the accused should wear an electronic monitoring device as a condition of release. I want to point out that this provision would also undo an important change made by Bill C-233, an act to amend the Criminal Code and the Judges Act, violence against an intimate partner, which received royal assent on April 27. If Bill S-205 is passed, electronic monitoring would be identified as an explicit condition of bail that could be imposed in all cases, and not just in cases involving violence against an intimate partner as is now the case because of the changes enacted in Bill C-233.

Last, this bill would create a new peace bond specific to cases involving intimate partner violence with a duration of up to two years, or three years if the defendant was previously convicted of an intimate partner violence offence.

I want to reiterate that I support the objectives of this bill, but I believe that changes should be considered to better align the proposed amendments with its objective. These changes could also minimize the potential for unintended negative impacts on groups who are already overrepresented in the criminal justice system, and ensure coherence with existing criminal law.

Next, I want to discuss how Bill S-205 fits into a broader framework of our government's support for victims of crime. I have already mentioned Bill C-48, which passed here on unanimous consent of all members. I want to thank colleagues across the aisle for their support and for recognizing the importance and urgency of Bill C-48. It is a direct response to requests made by the provinces and territories, as well as law enforcement agencies from across our country. This piece of legislation would strengthen Canada's bail laws to address the public's concerns relating to repeat violent offenders in offences involving firearms and other weapons.

Bill C-48 would introduce a reverse onus at bail on the use of dangerous weapons such as firearms, knives and bear spray. Bill C-48 would also create a reverse onus for additional indictable firearms offences, including unlawful possession of a loaded or easily loaded prohibited or restricted firearm, breaking and entering to steal a firearm, robbery to steal a firearm and making an automatic firearm.

Through this bill, we are sending a strong message that crimes committed involving a firearm are unacceptable and represent a dire threat to public safety. We have seen too many lives lost to gun crime.

As I have mentioned previously, Bill C-48 would also strengthen the existing reverse onus that applies to accused persons charged with an offence involving intimate partner violence when they have a previous conviction for this type of an offence. Bill S-205 has this same objective, and I am glad to see members from all parties take intimate partner violence seriously.

Another proposal in Bill C-48 relates to what considerations the court must make when deciding whether to release someone on bail. A former bill, Bill C-75, passed in 2019, amended the Criminal Code to provide that before making a bail order, courts must consider any relevant factor, including the criminal record of the accused or if the charges involve intimate partner violence.

Bill C-48 would expand this provision to require courts to consider if the accused's criminal record includes a history of convictions involving violence. Bail courts would be specifically directed to consider whether the accused has any previous violent convictions and whether they represent an increased risk of reoffending, even when the proposed reverse onus does not apply. This change would enhance public safety, and I am again pleased that my colleagues support the passage of Bill C-48.

A second bill I wanted to highlight is Bill S-12. Just this week, we debated this legislation. Bill S-12 would improve our national response to sexual offences by strengthening the national sex offender registry regime. We have responded to concerns raised by the Supreme Court and law enforcement agencies in this legislation. The list of designated offences that qualify an offender to be registered on the national sex offender registry would be expanded by Bill S-12, and this list would include non-consensual sharing of intimate images and sextortion, two crimes that have had terrible impacts on the lives of Canadians, especially women and children. This would be a very positive step forward.

Bill S-12 is a direct product of conversations with survivors and victims of sexual crime. Bill S-12 would reform the publication regime to recognize the diversity of victim experiences and ensure that survivors have agency to tell their own stories if they so choose. Bill S-12 would also change the process for providing victims with information on their cases to better reflect the Canadian Victims Bill of Rights. Both of these changes are about one key element: choice. There is no one right way to be a victim. Bill S-12 reflects this reality.

I am happy to support Bill S-205, and I hope that the elements I have raised as potential concerns with the bill can be further studied at committee.

Royal Assent of Bill S-12

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Mr. Speaker, today I stand to highlight the recent passage of Bill S-12, which amends the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act. This bill received royal assent yesterday.

I want to express my gratitude to all parties and the Senate for its support and dedicated efforts in acknowledging the significance of this legislation and in ensuring the safety of Canadians today and in the future. More importantly, I want to underscore the efforts and work of survivors of sexual assault in sharing their stories to inform this legislation. This includes representatives from My Voice, My Choice, whose tireless efforts led to these important changes to the publication ban regime.

More specifically, I give a sincere thanks to Morrell Andrews, who is a testament to what can be achieved when we stand up and advocate for what we believe is right. I thank Morrell. Congratulations.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

I have the honour to inform the House that a communication has been received as follows:

Rideau Hall

October 26, 2023

Mr. Speaker,

I have the honour to inform you that the Right Honourable Mary May Simon, Governor General of Canada, signified royal assent by written declaration to the bills listed in the Schedule to this letter on the 26th day of October, 2023, at 5:18 p.m.

Yours sincerely,

Christine MacIntyre

Deputy Secretary to the Governor General

The Honourable

The Speaker of the House of Commons

Ottawa

The schedule indicates the bills assented to on Thursday, October 26, 2023, were Bill S-222, An Act to amend the Department of Public Works and Government Services Act (use of wood), and Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.

Message from the Senate

[The Acting Speaker, Bloc, Gabriel Ste-Marie]

I have the honour to inform the House that a message has been received from the Senate informing this House that the Senate agrees with the amendments made by the House of Commons to Bill S-12, an act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act, without amendment.

Criminal Code

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, I thank the hon. member for the efforts he has put in within his community to help address the scourge of sexual assault in all communities across the country. I also thank all of the community-based organizations that provide support to survivors of sexual assault in particular but also to victims of crime.

One of the things we concluded unanimously in the justice committee's report on providing better support for victims of crime is that the federal government has to do more to support community-based activities. Coming back to Bill S-12, I think one of the important aspects of allowing sexual assault victims to speak freely about their cases if they choose to do so is that it will help remove the stigma associated with sexual assault. This in itself will help improve reporting rates.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, I am pleased to be speaking to Bill S-12 today, as it would address one of the recommendations of the Standing Committee on Justice and Human Rights report entitled “Improving Support for Victims of Crime”, which was tabled in the House in December 2022.

When the justice committee began its study on victims of crime more than a year and a half ago, the member for Victoria brought to my attention the bizarre and unjust situation that survivors of sexual assault face in their current circumstances, which is that survivors regularly suffer from restrictions on their ability to talk about what happened to them and sometimes even suffer penalties for violating court-ordered bans on the publication of information that would identify their own names. It is important to note that these bans are routinely imposed in sexual assault cases across Canada. Anecdotally, we know it approaches 100% of the time. It is also important to note that most of the time, this happens without survivors' being aware that the publication ban is in place.

Bill S-12 would fix that by requiring notification of survivors. There are many reasons a survivor might choose to or inadvertently violate such a ban. Some feel that such publication bans inadvertently protect the perpetrators by the necessity of protecting their identity in circumstances where the publication of the perpetrator's identity would identify the victim. Others feel the idea of publication bans itself is based on an archaic and misogynist idea that sexual assault victims are somehow responsible for what happened to them and should be ashamed.

To be clear, some survivors do want their privacy protected by having publication bans in place, but others believe that public safety requires them to let family, friends and members of the public know of a risk of sexual assault they might face, by identifying the fact they were assaulted and who the perpetrator was.

At this point, I want to express my thanks to the survivors of sexual assault, and in particular those from the group My Voice, My Choice, who risked retraumatization by coming forward to committee and talking in public about their own personal experiences, in order to get the legislative change they need, in the hearings before the justice committee on victims' rights that began in October 22, more than a year ago.

Again, I want to thank the member for Victoria, who brought this situation to my attention and then introduced a private member's bill on the topic in order to try to get the House to act. In addition, I want to thank the member for LaSalle—Émard—Verdun, the former minister of justice, who decided to include measures to restore agency to survivors of sexual assault by including it in Bill S-12.

The government did not choose a path, using a Senate bill, nor did it choose a timetable, at the last minute, that New Democrats might have chosen. This has left us with little time to meet the deadline for passage of Bill S-12 and therefore with little time to consider all of the important amendments suggested by My Voice, My Choice, without endangering the fate of this bill as a whole by causing a to and fro between the House and the Senate. Now, we have a bill that, had it been on a better path and a better timetable, could have been even better in meeting the needs of survivors of sexual assault. However, we still have a bill before us that, I am assured, would make the necessary fundamental changes to restore agency to survivors and to ensure that there would not be prosecutions for violating bans of those whom they were supposed to protect.

Let me turn briefly now to the other half of Bill S-12, which provided the original impetus for the bill. The Supreme Court of Canada decision requires revisions to the sex offender registry. The Supreme Court found that automatic lifetime registration for those convicted of listed offences was overly broad, and as a consequence, was capturing some who were very unlikely to reoffend. I know some argue that all must be listed, but it is important to remember that if we list people who are at very low risk to reoffend, we waste public resources that might better be used to monitor the higher-risk offenders.

Instead, Bill S-12 would meet the Supreme Court's challenge by implementing the presumption of registration of those convicted. This would mean that a very small number of those convicted of listed offences could ask a judge to use their discretion to exempt them from legislation. The estimates are that it would be probably far fewer than 10% who could ask for that exemption.

The bill would also strengthen the sex offender registry in a couple of important ways. Most importantly, to me, it would add the offences of non-consensual distribution of intimate images and so-called sextortion to the list of offences that would result in registration as a sex offender.

In our modern world of overuse of social media, overuse of the Internet and overexposure of everyone to everything, these offences sometimes may seem trivial. However, we must remember that with non-consensual distribution, intimate images last forever on the Internet, and I think those who perpetrate this need to understand that these offences will be taken very seriously and that they will be monitored as sex offenders on the registry to make sure they do not engage in this kind of behaviour again.

I would like to conclude with thanks to all the parties that have worked together to get this legislation here today in time to meet the Supreme Court of Canada's deadline. I know that some parties still have reservations and I know that some of the victims would like to have had more amendments made to the bill. However, I do believe that we have it in a form in front of us today that will help restore agency to survivors of sexual assault in the future. I think that is a very important reason for us to act promptly.

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

Madam Speaker, I was saying that it took six months for Senator Gold to introduce the bill in the Senate. I do not blame him. It was the government's responsibility, not his.

The Senate passed the bill at third reading in two months, which seems more than reasonable to me. Three months went by between June 22 and September 19, because it was the summer. The bill arrived in the House on September 19, and 36 days later, here we are in the House for third reading of the bill. Thirty-six days is obviously not a lot of time to study a bill of this magnitude in the House. I find that disappointing.

What happened between October 28, 2022, and April 26, 2023? Was the government closed for business? Were there no ministers around who could work on drafting the bill? I guess not. I am very disappointed.

The only reason we are here today, being forced to ram through this bill, jeopardizing our parliamentary duty to listen to every citizen and group concerned about the bill, weigh their positions and arguments, and study the representations made in committee with care and attention, is that the government did not put in a modicum of diligence to satisfy the obligations imposed on it by the Supreme Court ruling. At no point, in the House, in committee, in the media or in a press release, did the government offer the slightest explanation for this delay. We received no explanation, no excuse, nothing. Again, it is disappointing to say the least.

Basically, the bill reinstates the principle of automatic registration, but with better guidelines and subject to certain conditions. Registration will now be automatic only for sex offenders sentenced to a term of imprisonment of two years or more and for repeat offenders. In all other cases, there will be a presumption that the offender will be required to register, but it could be overturned if the individual proves that there is no connection between the order to register and the purpose of registration or that registration is totally disproportionate to that purpose.

Bill S‑12 therefore allows for greater flexibility and provides that judges may use their discretion to order whether those convicted of multiple offences during a single trial should, or should not, remain on the registry for life when their behavioural profile demonstrates an increased risk of reoffending.

The Bloc Québécois unsurprisingly endorses these amendments, which are in line with human rights requirements and respond to the Supreme Court's October 28, 2022 ruling.

With regard to the second component, Bill S‑12 proposes provisions promoting the participation of victims at the publication ban stage, when a ban is to be issued. On numerous occasions, witnesses have come before the Standing Committee on Justice and Human Rights asking that we amend these rules and allow victims to intervene before a publication ban is issued.

Publication bans are issued to protect the identity and privacy of victims and witnesses. They are issued for their benefit, not for the benefit of the defendant or the benefit of the courts and prosecutors. The basic principle in Canada, and a cornerstone of our justice system, is to hold open trials. Not so long ago, we heard about hidden trials, secret trials. I do not think anyone wanted them. They certainly should not become the rule. Open legal proceedings are a guarantee of fairness and of trials that comply with the applicable legal provisions. Justice is done in public, not behind closed doors or in secret.

Obviously, the presence of the public and the media in the courtroom is critically important, as is the right to talk about the trial, the evidence presented and the issues at stake. Publication bans should be used only under exceptional and clearly defined circumstances. On several occasions, the courts have heard challenges to their validity, often raised by media representatives.

If these bans are to be issued only on rare occasions, it is quite understandable that the reasons justifying them must be very well defined and clear to everyone. The purpose of the bans must be to protect the identity and privacy of victims and witnesses, or at least seriously strive to achieve that objective. What is the current situation? At present, unfortunately, that is not always the case.

Bill S‑12 seeks to ensure that the people we want to protect are truly protected, and that they know they are protected. It seems to us that, at the very least, before issuing such a ban, the courts must ensure that the victims are aware that a ban is being sought and could be granted, that they understand the details of the ban and, finally, that they consent to it. How else could anyone claim that the ban is in their best interests?

Victims must also have the opportunity to request that the publication ban be modified or lifted. Victims may have consented to a ban for one reason or another but, for a host of other good reasons, they may later decide they want the ban modified or lifted. Logically, victims should be allowed to request such modifications if the ban is indeed in their best interests, as it should be.

However, as things stand, these bans are often issued without the victims' knowledge and, unfortunately, without their consent. Worse still, when they find out that a publication ban has been issued, the victims, whom the bans are intended to protect, are currently unable to request that the ban be modified or lifted. As if that were not enough, victims are even liable to prosecution if they violate a publication ban by speaking out about the assaults they have suffered or about their attacker's trial. The victim we want to protect becomes the culprit we want to prosecute. I agree with what everyone is probably thinking: That is insane and it has to change.

The purpose of Bill S‑12 is therefore to correct these incongruities and greatly improve the situation for victims and witnesses. From now on, judges will have to ensure that victims are notified when a publication ban is about to be issued and that they consent to it. If the victims are not present in the courtroom, the judge will have to ensure that the prosecutor has notified them and obtained their consent. Furthermore, victims will now be able to communicate with a legal professional, a health professional or a person with whom they have a relationship of trust without putting themselves at risk of contravening the publication ban. This is a necessary and welcome improvement. One even wonders how it could ever have been otherwise.

That said, our courts will face challenges. Sometimes, they will have to weigh the interests of the different parties if one victim wants a publication ban revoked or varied but other victims involved in the case disagree. The judge deciding the issue will have to consider the opinions and rights of everyone concerned by the ban. It will definitely take some imagination to word the ban in a way that satisfies and respects each person it needs to protect. This will be no small challenge, but nonetheless, it is a challenge we must meet. While it may not be perfect, I hope that Bill S‑12 will largely and adequately meet our legislative obligations.

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

Madam Speaker, I would like to start by thanking my colleagues on the Standing Committee on Justice and Human Rights for making it possible to pass Bill S‑12 in a reasonable enough time frame that should hopefully allow it to get through the legislative process fast enough for the existing legislation to be amended before the deadline set by the Supreme Court. I think everyone on the committee worked seriously and diligently, and I would like to thank them all.

Having said that, Bill S‑12 has two components. The first is the component required by the Supreme Court pertaining to the national sex offender registry. It is a response to the Supreme Court ruling handed down on October 28, 2022, in R. v. Ndhlovu, which struck down two provisions of the Criminal Code, namely section 490.012 and section 490.013(2.1).

The court held that registering offenders who are not at risk of committing a future sex offence is disconnected from the purpose of registration. The court pointed out that the purpose of registration is to capture information that may assist the police in preventing and investigating sexual offences.

The Supreme Court gave the federal government one year to remedy the situation, and that time is up next week, on October 29, 2023. If the amendments are not passed by then, then offenders will no longer have to register with the national sex offender registry. Clearly, we all want to avoid that.

Obviously, the House of Commons fast-tracked the legislative process to meet that deadline. What I am wondering is why the government waited until April 26, six months after the Supreme Court ruling, to introduce this bill. I would remind the House that the Supreme Court delivered its ruling in R. v. Ndhlovu over a year ago on October 28, 2022, and ordered that the Criminal Code be amended by October 29, 2023.

On April 26, 2023, Senator Gold introduced a bill in the Senate, six months after the Supreme Court delivered its ruling. Bill S‑12 was passed in the Senate at third reading on June 22, meaning the bill took two months to get through the Senate. Six months elapsed between the time when the government found out that it had to amend the law and the time when the bill was introduced, another two months elapsed between the time when Senator Gold introduced his bill and the time when it was passed at third reading in the Senate, and a further three months passed before the bill arrived here in the House of Commons—

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Speaker, I want to ask my colleague a question about Bill S-12.

As was said, when we were in government, we brought in changes to have a mandatory listing of all convicted sex offenders put in the registry. We had to respond to a Supreme Court decision, and the government's response has been tepid. One of the amendments that Conservatives put forward at committee would be to require the mandatory listing of all convicted child sex offenders. There is nothing in the Supreme Court decision that would have prevented that step from happening.

The Liberal and NDP coalition voted against the common sense amendment that would have listed all convicted child sex offenders. Can the member tell me what message she feels that sends to Canadians?