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.

Bill C-50—Time Allocation Motion

[Anna Roberts, Conservative, King—Vaughan, ON]

Mr. Speaker, on October 5, 2023, for the second 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, I voted on the voting app. The voting app sent me a confirmation whereas the picture had not gone through. Therefore, I ask the House to give unanimous consent to vote yea.

[Pam Hrick]

Absolutely, and I think you've heard the best kind of evidence on that point from people like Robin Parker and Megan Stephens. I urge you to listen to that, based on their decades of experience representing survivors and also their experiences with Crown and criminal defence lawyers as well.

I think one of the good things about Bill S-12 as it's currently drafted is that it makes it much clearer. A line Crown prosecutor can go to the legislation and see it's not appropriate for them to pursue charges because the three criteria there are not met. It doesn't have to be something that is a matter of discretion as they are figuring it out, in some cases really quite poorly, as evidenced by the examples we have heard about. It's setting it out much more clearly and being very narrow about the circumstances in which it would ever be appropriate to pursue that.

I think that is another good thing about this legislation—that clarifying element of it.

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

The suggestion has been made that we certainly could amend Bill S-12, at least on the prosecution possibility, to add a list of circumstances that would not result in prosecution. That would include things like counsellors, legal advice and trusted individuals for minors. Would you say that it would be an addition that would be important?

[Dr. Benjamin Roebuck]

Yes. Thank you.

Can you imagine if, in your family, someone was murdered and the federal government didn't think that it was appropriate to let you know that the offender was being released, or if you could participate in a parole hearing but they didn't tell you that it was happening. That's the problem. Nobody has a legal responsibility, prior to Bill S-12, to inform people, certainly on the federal side, about how to register to receive information. That's a major source of complaints to our office.

There are women who participated in the National Inquiry into Missing and Murdered Indigenous Women and Girls, who have family members who disappeared or were killed, and still, after all of that process, they aren't being told about these hearings and about the release of people back into their communities, so this change has to happen.

I think we need to improve overall information. I'll just highlight why independent legal advice is really important in sexual assault.

We had a complaint recently where somebody said, “I wish that someone had told me to speak to a lawyer before I reported it to the police, because I told them that I had seen a counsellor and that I was journaling.” Both of those things became part of the disclosure and were subpoenaed by the offender. In the end, the complainant stayed their charges because it felt like such a personal invasion.

This is happening across the board, where survivors' experiences are not being protected in the way that we do justice. That is certainly the case with this issue of therapeutic records, which I know has passed through the Supreme Court and has had different perspectives. However, I don't think that a survivor-centred perspective has been fully considered on that, and it could be better protected with independent legal advice.

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

I agree with you, Mr. Roebuck. This is more or less what Bill S‑12 does, whereby Crown prosecutors will have to answer the judge's questions and say whether they have taken into consideration what the victims want. If a Crown prosecutor feels that this puts them in an awkward position, they can produce those documents and simply answer the questions.

There's probably a way of articulating something useful. Publication bans are issued to protect victims, but what the victims want isn't taken into account, which strikes me as absurd, and it makes no sense in our criminal system.

The obligation imposed on the Crown prosecutor doesn't place them in a conflict of interest, particularly since, in principle, there is no case to win. The Crown prosecutor is there to establish the truth.

There are about two minutes left, and I would like to hear more about the potential conflict of interest a Crown prosecutor might have in answering victims' questions about the ins and outs of a publication ban.

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

Thank you, Madam Chair.

I'd like to thank the witnesses for being with us today. Their participation is valued.

We're dealing with a subject in Bill S‑12 that I think is important. It's a bit incidental initially, because there's a rush with the sex offender registry part of the bill, but the bill also addresses the issue of publication bans. This seems to me to be a serious matter. Victims who have testified before us on all kinds of bills and situations have often talked about these orders.

Correct me if I'm wrong, but I think a number of things will be repeated in every case. What is a publication ban? I know that not everyone will read the part of the Criminal Code amended by Bill S‑12 and be able to understand what it's about or what can or can't be done. It should be possible to produce informational material. In fact, Ms. Dhillon just asked the question. We're all on the same topic. This material could be distributed to victims beforehand. Before victims decide whether they want a publication ban issued in their case, they need to be able to understand the implications of such a ban.

Of course, each case is unique. The Crown prosecutor would probably have to add specific details for each case or answer questions. In addition, courts or courthouses could make resources available to victims to answer their questions. This is already being done in different ways on different subjects. In short, there's surely a way to organize more specific information.

Generally speaking, do you think it would be possible to produce a kind of tutorial, even if it meant that victims would have to enlist the services not only of a lawyer, but also of an educator, to develop materials that would adequately inform them of their rights and obligations in connection with a publication ban?

[Pam Hrick]

I would like to see a plain language explanation of exactly what the law is, once and if Bill S-12 is passed by the House of Commons back to the Senate, with any amendments of course. If the Parliament approves that, I'd like to see plain language resources for survivors to explain exactly what the legislation requires.

I would like to see one-stop shopping, ideally, for resources that survivors can avail themselves of to receive support, guidance and hopefully independent legal advice where it exists.

Those are the kinds of things that I'd like to see housed in one place. Again, the plain language nature of it is so important, especially when people are accessing those resources in a time of intense trauma.

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

Thank you for your answer.

How do the provisions of Bill S-12 better reflect victims' rights to information under the Canadian Victims Bill of Rights?

[Pam Hrick]

I think that Bill S-12 right now centres that issue in ensuring that survivors can exercise choice and agency in determining what choice is best for them in the circumstances.

Bill S-12 allows for publication bans to be put in place right off the bat, which, as acknowledged and heard at this committee, can feel like a suffocating or retraumatizing experience for some survivors. Putting in those mechanisms to easily allow for the ban to be lifted, varied or revoked is an important measure to give effect to those survivors' choices.

Having the discretion or the ability present in the amendments to Bill S-12 to allow for that protection to exist and persist for survivors who wish to avail themselves of the privacy protections of the ban is also something that this bill, as drafted currently, achieves.

I want to also re-emphasize the court resourcing point. It's not just that courts are under-resourced. It is that resources need to be directed in a way that will allow survivors to be supported in the process if they choose to report, and will allow them to make choices about whether to report in the first place.

I could go on and take up most of the committee's time talking about ILA programs that exist for survivors, for example, in Ontario, to help them make those choices and about the need to expand those across the country and properly fund them.

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

Thank you, Chair.

Thank you to our witnesses for being here.

I'll start with Madam Hrick.

We've talked with very good reason, under Bill S-12, about victims who wish to lift their publication bans. I'm going to ask my question in two parts, if you can answer them, please.

I want to ask you about the victims who want a publication ban to protect their privacy. Are there parts of Bill S-12 that could create barriers or confusion for people who do want a publication ban? How can we balance the interests of both?

[Pam Hrick]

I'd have to give you a blanket answer, and I think the legislation provides for a process that allows those voices to be heard and for courts to consider whether a tailoring of a publication ban could address those various privacy interests. I think it would be a case-by-case determination, and Bill S-12 does give tools to the court to be able to make that kind of decision, one that hopefully, to the greatest extent possible, allows for every victim's or complainant's wishes to be taken into consideration and to ultimately be respected.

[Pam Hrick]

I'd say perhaps a case where there is a very narrow scope of individuals who are covered by the publication ban, such as a single individual, a single victim or complainant, where nobody else's interests are impacted. It juxtaposes, of course, with cases where there are multiple complainants, where there are different privacy interests that may be competing or where you have different desires among those individuals to have the privacy protections of a publication ban and those who do not want those privacy protections. I think that's the kind of case that might be a little bit simpler.

I do think the amendments that have been proposed and adopted by the Senate to simplify the process are a great improvement over what we have now and a great improvement over what Bill S-12 initially proposed.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you, Madam Chair.

Thank you to the witnesses for being here.

You've given very important evidence about one aspect of Bill S-12. Your focus has been on publication bans, which is very important legislation, and we are generally supportive of it.

However, I just wanted to get on the record how profoundly disappointed I am that the government side of the House has delayed this legislation and is now rushing it through. We have a deadline of October 28 in response to a Supreme Court of Canada decision that said that the sex offender registry was unconstitutional, so Bill S-12 intends to fix that.

Now, on top of that, we also have this second add-on of the publication ban. Listening to your evidence today, Ms. Hrick, you say that there are a lot of voices that haven't been heard, and here we are in a big rush with October 28 to get this whole bill passed. I don't feel that we're giving just time to this very important piece of legislation.

That said—that's off my chest now—I want to thank you for your testimony, but we've heard from other witnesses who have said that there should be a simplified process for revoking the publication ban in simple cases. Perhaps you could tell us what, in your mind, constitutes a simple case.

[Dr. Benjamin Roebuck, Federal Ombudsperson for Victims of Crime, Office of the Federal Ombudsperson for Victims of Crime]

Thank you. It's nice to see you again.

Madam Chair and members of the committee, thank you for inviting me to speak on Bill S‑12, an act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.

I acknowledge that we are on the traditional unceded, unsurrendered territory of the Anishinabe Algonquin nation. I honour the leadership, strength and wisdom of indigenous peoples, and I accept personal responsibility for pursuing justice and reconciliation.

The Office of the Federal Ombudsperson for Victims of Crime is an independent federal agency at arm's length from Justice Canada. We provide information to the public on victims' rights, review complaints from victims about federal agencies and advise on criminal justice legislation and policy. Our recommendations are informed by conversations with survivors and stakeholders across the country and around the world, and by our indigenous, academic and service provider advisory circles.

The volume of inquiries and complaints to our office continues to grow. We project a 128% increase in files opened this year versus 2017.

Our office has also prepared a comprehensive response to this committee's study on improving support for victims of crime, which we will submit to you shortly.

To the courageous survivors who have advocated for Bill S-12, thank you. I also recognize survivors who continue to be silenced by publication bans, and I have heard how painful it is to be excluded from this process—not being allowed to speak to Parliament with your own voices and names.

One survivor provided consent for me to share their silence for 30 seconds. Please join them in silence.

[A moment of silence observed]

In June, I appeared before the Senate standing committee to discuss Bill S-12. I am pleased to see how the senators incorporated feedback from survivors and other stakeholders.

I continue to support recommendations from My Voice, My Choice and other survivors who have contacted our office, including on better education for prosecutors and judges on how trauma affects memory and information processing; how important autonomy over identity is for recovery; collecting reliable court data on publication bans; informing sexual assault survivors about their rights, respecting their choices and offering independent legal assistance, where available; treating Criminal Code provisions for victims of crime with the same weight as measures for the accused; and better protecting the therapeutic records of sexual assault survivors who need unconditional safety to externalize and process the violence imposed on their bodies.

Some of these recommendations are addressed in the bill, while others will require more work. We've heard about numerous rights violations, barriers and contradictions in how the criminal justice system responds to sexual violence. Our office is in the early stages of planning a systematic investigation into these challenges in order to propose more comprehensive and trauma-informed remedies to Parliament.

In a recent discussion with Crown prosecutors, we heard that the requirement to consult on publication bans in Bill S-12 occurs prior to their regular first contact with complainants. This raises the concern that the implementation of Bill S-12 could lead to rushed decisions on publication bans. We've also heard concerns that some survivors may choose to reject or lift a publication ban without understanding potentially long-term consequences.

I understand the need to pass Bill S-12 quickly, so I will limit my recommendations to a few key areas that could easily be written into the legislation or included in implementation.

Number one is informed consent. Decisions about publication bans have significant consequences for survivors. The pros and cons should be clearly presented with supporting resources that provide information in plain, easy-to-understand language. Trauma can make it difficult to process and recall information, so having something to review can help with decision-making.

We propose an addition under “Duty to Inform" in proposed subsections 486.4(3.2) and 486.5(8.2) requiring the prosecutor to inform the judge or justice that they have provided a resource on publication bans to explain the law, safety considerations and how to have a ban varied or revoked.

Finally, on victim-centred information.... I can summarize it to shorten my time here.

It's wonderful that we've included a measure for victims of crime to finally be asked whether they'd like to receive information about the sentence and its administration. That's very important, but it still remains offender-centred in the way it's presented. It's not clear that, if a victim doesn't check that box, they will not be told about a parole hearing or about when the person who harmed them has been released. There are consequences to that as well. We need to improve some of those measures.

[Pam Hrick, Executive Director and General Counsel, Women's Legal Education and Action Fund]

Thank you, Madam Chair.

Good afternoon. As has been mentioned, my name is Pam Hrick. I'm the executive director and general counsel of the Women's Legal Education and Action Fund, or LEAF. We use litigation, law reform and public legal education to advance the equality of women, girls, trans and non-binary people. We've been at this since 1985.

I'd like to thank you for inviting me here to speak with you today about Bill S-12. I was pleased to also have the opportunity to appear before the Senate committee studying this bill earlier this year. I am going to focus my remarks today as I did before the Senate committee on the publication ban portion of Bill S-12.

We were very encouraged to see the willingness of parliamentarians to improve how publication bans are imposed, varied and revoked. This work has been driven to the forefront of public attention by sexual assault survivors, including those involved with My Voice, My Choice, with support from feminist lawyers, advocates and organizations like LEAF who echo the calls for change to centre survivor choice.

LEAF was very glad to see the Senate amend the legislation in response to concerns that were raised at committee. We had several overarching recommendations for amendments to strengthen the bill in the Senate. These included, first, ensuring victims are not criminalized for failing to comply with a publication ban on their own identity; second, ensuring that people whose identities are protected by a publication ban can still disclose their identity in contexts such as with a therapist or a support group; and third, clarifying and simplifying the process for revoking or varying a publication ban.

These recommendations were put forward by a coalition of organizations and individuals with deep expertise on sexual violence and the legal system. They included LEAF, the National Association of Women and the Law, the Canadian Association of Elizabeth Fry Societies, the Ending Violence Association of Canada, Legal Advocates Against Sexual Violence, Possibility Seeds, Megan Stephens, Pamela Cross and Robin Parker.

Of course, I'm here today speaking for LEAF. We would urge you, by and large, to maintain the amendments to the legislation that were adopted by the Senate, which were responsive to our recommendations.

One modification we would encourage you to consider at this stage was spoken to by Ms. Stephens on October 5, and it was just spoken to by Ms. Parker today. That concerns the requirements the bill places on prosecutors. As you've heard, the current version of the bill requires prosecutors to inform complainants of the existence of a publication ban and their right to apply to revoke or vary it. These are practical and important information requirements that should be maintained. However, the bill goes further and requires prosecutors to share information about the publication ban's effects, and when and how the complainant can disclose information without violating the order. That verges on putting the prosecutor in a position of giving legal advice.

I agree with Ms. Stephens' and Ms. Parker's submissions that the bill should impose a more narrow requirement to inform a complainant of the ban's existence, that they can seek to have it varied or revoked, and that they are also entitled to get independent legal advice to make an informed decision about whether they wish to do so.

As I said before the Senate standing committee, we need investments in independent legal advice and education to ensure that survivors fully understand what a publication ban does, how it can be imposed and how it can be removed. We need these investments to ensure that survivors can make informed choices about what's best for them in their circumstances.

We've heard loud and clear from survivors that they want the ability to speak about their own experiences—or at least some of them do. We also know that some survivors wish to avail themselves of the privacy protections provided by a publication ban. As one expert, Anu Dugal of the Canadian Women's Foundation, said earlier this year, publication bans can serve as “one layer of support and protection for racialized women in a system that does nothing to actually support them or protect them—and in fact goes out of its way to blame them”.

I want to highlight that, unfortunately, it seems like the committee may be moving into clause-by-clause without having heard directly from any racialized survivors or legal experts concerning the impact of the proposed amendments.

I'll conclude though by stressing that both choices are valid—to have a publication ban in place or not. The important thing for this committee to keep in mind is that amendments related to publication bans must seek to give effect to survivors' choices and make it as easy as possible to exercise agency in making those choices.

Thank you, and I look forward to your questions.