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.

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

Could we amend Bill S-12 to maybe put some of that advice into Bill S-12 by saying that, in the case of talking to counsellors or medical professionals or trusted persons—some kind of list of people—it's definitely not a breach?

[Dr. Janine Benedet, Professor of Law, Peter A. Allard School of Law, University of British Columbia, As an Individual]

Thank you for inviting me to take part in this consideration of Bill S-12.

I'm sorry to say, because we're starting just a little bit late, that I do have to teach at 2 p.m. Vancouver time, which is 5 p.m. your time, but I hope I can be here for most of our discussion.

I'm going to focus my remarks today on the proposed changes to the sex offender registry. Not surprisingly, some of the things I'm going to say will track the points that Professor Fehr has made.

I conducted research a number of years ago that was referred to in the Supreme Court's decision in R. v. Ndhlovu. While I prefer the approach of the dissent in that case, at this point the decision for you is how to respond in a way that respects the charter, preserves the integrity of the registry and reflects the realities of how sexual offences are committed, prosecuted and sentenced.

The bill, as I read it, proposes making registration automatic in a few cases and strongly presumptive in others. I have two concerns about the current bill that track what you've just heard. One has to do with the trigger for mandatory registration. The other has to do with the factors the judge must consider in deciding whether to grant an exemption when registration is merely presumptive.

The first goes to a point that's already been raised with you, which is that this bill, as I read it, is saying that registration is mandatory for first offenders, and that it is triggered where the offence is prosecuted on indictment, the sentence is two years or more and the victim is under 18. This is a very high bar that is not, obviously, required by the Supreme Court.

The reality today is that major sexual assaults are often prosecuted by summary conviction for various operational reasons. The maximum penalty for sexual assault prosecuted summarily is only 18 months—there's an anomaly in the Criminal Code—unlike two years for other summary offences.

These serious sexual assaults against children will not attract the same mandatory registration, despite the fact that the circumstances of the offence and the risk of reoffence may be identical. Summary conviction offences are not invariably minor offences. I think it's important to stress that point.

The two-year threshold is also high. The resurgence of conditional sentences for sexual offences, including sexual offences against children, means that no offence where a conditional sentence is applied will attract mandatory registration either. You will see the avoidance of mandatory registration becoming a chip in plea bargaining, as well as a reason that some judges may sentence to less than two years to avoid that collateral consequence of conviction.

I would just say that if you are being sentenced to imprisonment for a sexual offence against a child, whether on summary conviction or by indictment, surely it cannot be unreasonable to also expect that you will be placed into the sex offender registry. To me, that trigger doesn't make a lot of sense. I think it could be lowered.

The second point—and it's one that has already been raised—is what happens if registration is not mandatory and only presumptive. Here we see the exceptions, and you've heard some concerns with those.

We know the problem is that, in the past, when judges were given discretion along these lines, they ordered exemptions frequently. My research showed that they did so in up to a third of cases, at least for those for which reasons were available. These exceptions weren't exceptional at all.

This is part of a pattern. When judges exercise unfettered discretion in the context of sexual offences, they fall into stereotypical reasoning. We've seen it in the context of sexual history evidence, private records in the hands of third parties and in the sentencing of offenders for both adult and child victims. There is the myth that opportunistic offenders are not real sex offenders, that men of good standing in the community are not real sex offenders, and that where no additional violence is used or children give de facto consent, these are not real sexual offences.

Bill S-12 does attempt to offer some conditions that must be considered by a judge in deciding whether to grant the order. However, most of them are vague and general and permit myth-based reasoning.

[Dr. Colton Fehr]

Thank you.

I'd like to focus on several of Bill S-12's features that respond directly to the Supreme Court's Ndhlovu decision.

At various points in Bill S-12, a disjunctive test is employed before determining whether an exception from the sex offender registry or a termination order is warranted. The test effectively employs the language of section 7 of the charter, in particular, the overbreadth and gross disproportionality principles. I suggest that this dual exception is unnecessary. Such an approach is only reasonable if there are circumstances where an overbroad law is not also grossly disproportionate.

If a SOIRA order doesn't further the law's purpose, the fact that the order has, per the majority of the Supreme Court, a “serious”, “onerous” and “considerable” impact on the offender's liberty strongly suggests that the effect is also grossly disproportionate. Notably, the original SOIRA legislation only employed the gross disproportionality exception. There's no indication that this exception was too narrow.

This is more than a semantic point, because allowing judges to avoid making a SOIRA order because they think there's no connection between the order's aim and the offender's conduct invites problematic speculation. As the dissent in the Ndhlovu observed, judges have frequently issued exemptions in highly inappropriate circumstances. They have excluded offenders because the judge thought they did not pose a future threat because they sexually assaulted people they knew, were viewers of child sex abuse materials, opportunistic offenders or historic offenders. These types of exclusions demonstrate that judicial bias in sexual offences is present in astonishing ways and with a disturbing frequency, as the dissent demonstrated with its overview of the jurisprudence.

While the proposed amendments provide factors to guide judicial discretion, these factors are stated quite broadly, I suggest. I agree with Professor Benedet, who suggested in 2012 that factors that are irrelevant should also be listed. These should include the fact that the victim knew the offender before the offence, that the act was opportunistic rather than predatory, that the offender has ceased the occupation or activity that brought him in contact with the victims, that he was intoxicated and that the offence did not involve multiple victims or additional bodily harm.

Discretion is also made available in other questionable circumstances. Amendments to subsection 490.012(1) would require that an offence be prosecuted by way of indictment and there be a sentence of two years, a penitentiary sentence, before a SOIRA order is mandatory for sexual offences against children. Does the available evidence establish that only child sex offenders sent to the most restrictive prisons in Canada are sufficiently likely to reoffend as a category to warrant a SOIRA order?

A review of the sentencing jurisprudence demonstrates that even cases of prolonged grooming with multiple assaults would not require an order, leaving the decision to the discretion of judges, which, again, has proven problematic.

With that said, Parliament likely wants to allow for judicial discretion not only to protect against section 7 challenges but also to keep SOIRA orders outside the purview of punishment under the charter. It's worth considering, though, whether the prior laws would be constitutional, the mandatory provisions, if conceptualized as serving investigative and punitive purposes.

In other words, could SOIRA orders not also and perhaps predominately be imposed as punishment, given the court's conclusion that an investigative model requires judicial discretion? Under such an analysis, it's not sensible to speak of overbreadth, because SOIRA orders will readily further the aims of denouncing and deterring offenders from committing further offences, nor is it clear that SOIRA orders would be grossly disproportionate, as the broader objectives of denunciation and deterrents would need to be given due weight alongside the investigative benefits these orders already serve.

While this approach may engage section 11(i) of the charter, this could be avoided. Retroactive application could be avoided by allowing offenders who committed an offence under the prior legislation to apply for exemptions where the impact on them is not inconsistent with Ndhlovu.

Thank you.

[Robin Parker, Counsel, As an Individual]

Thank you, Madam Chair.

I'm going to speak on publication bans.

In 2021, sexual assault survivor C.L. was convicted of breaching her own publication ban. Her crime was texting the reasons for her abuser's conviction to her friends and family, a group of supporters. The trial judge described the assault as extremely serious and violent, and her children were in the home at the time it happened. The trial was long and difficult. She had a community of supporters—a network. Some of them were not in court the day the accused was convicted, so she sent them the reasons for judgment via Facebook Messenger. The accused learned of this and complained to the police.

C.L. was charged with violating the publication ban that had been put in place to protect her. The prosecutor reviewed the file and somehow determined it was in the public interest to prosecute her for this. They said they would seek jail if she was convicted. She took money from her savings account and hired a defence lawyer. Her lawyer explained that, if she pleaded guilty, she could avoid jail. Her lawyer would join the Crown in asking the judge to impose a $2,000 fine. Frightened and traumatized, she agreed. As a final insult, on the day she pleaded guilty to something that isn't actually a crime—I will come to that—the judge imposed a $600 victim fine surcharge, even though C.L. was the actual victim.

The law on publication bans is clear and settled. Texting a legal decision to a small group of supporters does not constitute intentional publication, broadcasting or transmission within the meaning of the Criminal Code. C.L. committed no crime, yet every justice system actor who touched the file failed her—the police, the Crown, her own lawyer and the judge.

I reached out to her after reading about her case in the news. With the help of my colleague Karen Symes, we successfully appealed the decision. C.L.'s conviction was quashed and her money, including the victim fine surcharge, was returned to her.

Her case made national news and galvanized a network of survivor advocates who were having difficulties of another kind with publication bans—getting them lifted. These brave women eventually formed the group that testified here, My Voice, My Choice. However, because of the media attention, survivors across the country started reaching out to me—since I happened to have my name in the paper—and my friend and colleague Megan Stephens, whom you met a couple of weeks ago.

In the intervening years, I have assisted many survivors in getting publication bans lifted and advised countless others. Today, I bring this practical experience to the committee, as well as almost three decades as a prosecutor, defence counsel, victims' rights advocate and survivor myself. I have seen the system deal with sexual assault cases from every side.

I share C.L.'s story with you because, in many ways, it was the genesis of these amendments. However, it's important to stress that her ban remains in place because she wants it. The principles underpinning these amendments must be knowledge and autonomy for complainants. These provisions were found constitutional in the Canadian Newspapers' case because of their laudatory purpose of encouraging reporting. It needs to be easy to have the ban imposed and easy to have it lifted. In all cases, there should be a meaningful duty to inform the complainant, so they can exercise their rights.

I welcome and support the amendments in Bill S-12, but I echo the comments of others to stress the need for properly funded counsel for the complainant. Most complainants don't even know there is a publication ban in their case and, I would venture to say, literally none are consulted before it's imposed. This is why, at earlier stages of drafting, together with a network of other lawyers—one of whom is here to testify later, Pam Hrick of LEAF—we are lobbying to impose a duty to inform the complainant of the existence of the publication ban.

A prosecutor cannot provide legal advice to a complainant. Every discussion a prosecutor has with the witness is subject to disclosure obligations. The provision as drafted can put the prosecutor in the position of harming the complainant by having to disclose new information they receive while explaining the publication ban. For example, if the complainant asks, “Can I speak to my counsellor?” or says, “I have told my counsellor the details of this assault”, that may then put an obligation on the prosecutor to disclose to defence something that they might or shouldn't already know, which is that there might be counselling records they could subpoena.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

(Motion agreed to)

Thank you very much, everybody, for your indulgence.

I have one more reminder, if I may, on the deadline for Bill S-12. It is simply to let everyone know that, if there are any additional amendments to be distributed, I would remind you to please contact Mr. William Stephenson, legislative counsel, as soon as possible. He will ensure that amendments are properly drafted.

I would remind you that clause-by-clause is happening on Thursday, at the next meeting, and all amendments, including subamendments, must be submitted in writing and sent to our committee clerk.

Panellists, welcome. Thank you very much. We will have each of the three of you speak for five minutes. Due to the time restraints that we have, I will go with six minutes for each party and then conclude the first panel.

We have three witnesses: Ms. Robin Parker, counsel; Mr. Colton Fehr, assistant professor, faculty of law, Thompson Rivers University; and Ms. Janine Benedet, professor of law, Peter A. Allard school of law, University of British Columbia, by video conference.

I will have Ms. Robin Parker begin, please.

You will have five minutes, and the clerk will help me keep time as I take notes. I've seen it in other committees. If I hold up red, that means that the time is up.

Thank you very much.

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order.

Welcome to Meeting No. 77 of the House of Commons Standing Committee on Justice and Human Rights. Two of our members are virtual today, and most should be in the room.

Pursuant to the order of reference from the House adopted by the House on October 5, 2023, the committee is meeting in public to continue its study of Bill S-12.

Today’s meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application. I have a few comments for the benefit of the witnesses and members. One witness is virtual and two are in the room for our first panel.

Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mike, and please mute yourself when you are not speaking. There is interpretation for those on Zoom. You have the choice, at the bottom of your screen, of the floor, English or French. For those in the room, you can use the earpiece and select the desired channel. I would remind you that all comments should be addressed through the chair.

For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk is here and will assist me with that in case I miss someone. Thank you for your patience.

I have two very quick housekeeping items before we start with our first panel. A budget was circulated by email from the clerk to everybody, requiring a motion to approve the expenses to be paid to the witnesses for their costs to appear. It is moved by Mr. Housefather and seconded by Mr. Caputo. Thank you very much.

The second housekeeping item is similar. It is in relation to the hospitality expense related to the informal meeting with the United Nations High Commissioner for Human Rights yesterday, Monday, October 16. There were three committees involved in that meeting, and we were all asked to partake in paying part of that cost, which I'm told is less than $200.

Can someone please move a motion that we pay our share?

Thank you very much, Mr. Van Popta. I appreciate that. I think you were there yesterday as well.

Do I have a seconder? I don't need one. Thank you very much, though, Mr. Brock.

Oral Questions

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

Mr. Speaker, I was just informed today that my vote yesterday on Bill S-12, after receiving confirmation from IT that I voted yea, was not recorded. I have contacted IT and they are looking into the matter, and I would like my vote to count.

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

Thank you very much, Madam Chair.

I want to start by saying thanks to all the survivors, not just Morrell but the others who are in the room today, and all those who have come forward. It's a very difficult thing to talk about. Some of you may know that I'm also an adult survivor.

I also thank Laurel Collins, the member for Victoria, because when we started our study on victims, Laurel came to me and said, “I don't think they were thinking about this when they were studying victims, so I really want to make sure that you, as the justice committee, include this in your study, and I can tell you whom you need to talk to.” So Laurel Collins, the member for Victoria, was very influential. She had a private member's bill, which is running faster, and I guess I am frustrated by timing.

Both halves of Bill S-12 are urgent, and I think, Morrell, your comments today really underlined that for me when you were talking about how many times.... I've been trying to get somebody to admit how frequent this is in our society, because this is the most under-reported crime, yet we have dozens and dozens of cases before the courts all the time. I wonder if you could say a bit more about the frequency and the number of people who are subjected to the bans, not just subjected to sexual assault—I don't want to skip over that—but subjected to those bans.

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

Thank you, Chair.

I thank the three witnesses for being here. Their testimony is extremely important.

We don't have much time, so I won't waste any more than I have to, but I agree with what my colleague, Mr. Brock, said. I can't figure out why it took six months for Bill S‑12 to be introduced in the Senate after the Supreme Court's decision. We literally wasted six months. Now we find ourselves rushing you to testify, which is just rude, if you ask me. I apologize on behalf of all my parliamentary colleagues. I'm sure they're no happier about this than I am.

That said, we don't have much time, so I won't look at every aspect of the bill. Pretty much everything has been covered. However, there's one thing we haven't really looked at, and I'd like to hear what you have to say about it, Ms. Stephens.

Just a side note, Ms. Andrews, I have your proposed amendments in both French and English. That's good, and I can assure you I'll take them into account.

Ms. Stephens, the issue is publication bans when there are multiple victims. For example, there might be a 14-year-old girl, a 20-year-old woman and a 30-year-old woman. Some want a publication ban for their and their family's peace of mind, but others want to talk about it because that's therapeutic. There are many different points of view, all of them equally valid.

How should a publication ban be set up when different victims have different perspectives and different needs?

I realize that a 14-year-old girl needs to be protected whether she wants that or not.

Would you please comment on that, Ms. Stephens?

[Suzanne Zaccour, Director of Legal Affairs, National Association of Women and the Law]

I'll be brief because I think everything has been said.

My name is Suzanne Zaccour, and I'm the Director of Legal Affairs for the National Association of Women and the Law.

NAWL is a not-for-profit organization that works to advance women's rights in Canada, including in the legislative process.

I'm always happy to come here and talk to you about legal issues that are gendered and that affect women in Canada.

We worked with other feminist lawyers and organizations to submit a brief when Bill S‑12 was in the Senate. We collaborated to highlight three important objectives.

We highlighted the need to ensure that victims are not criminalized for failing to comply with a publication ban. We highlighted the need to clarify and simplify the process for revoking or varying a publication ban. Quite frankly, it needs to be much clearer. These are not necessarily lawyers who are engaging with this process. We also highlighted the need to ensure that victims are adequately informed throughout the process.

Our position is that the Senate amendments are positive and have brought about a lot of progress in this bill to fulfill these three objectives.

I will call to your attention a minor detail. It's the language about a person being “subject to the order” rather than “subject of the order” in the “Limitation” section of the bill. I'm not so concerned, since the French version is correct, but we know how difficult this process is, so perhaps we can avoid litigation or having to do complex interpretation by just clarifying that the limitation applies to people who are “subject of the order”, whose identity is protected by the order, rather than to those who are “subject to the order”, which is everybody, because everyone needs to respect a publication ban.

I have more to say, but I know we're pressed for time, so I'm going to stop here. We'll be happy to answer questions.

Thank you.

[Morrell Andrews, Member, My Voice, My Choice]

Thank you.

I would like to thank the Algonquin Anishinabe people, whose land we gather upon today. I will once again encourage this committee to integrate the calls to action from the Truth and Reconciliation Commission into your report.

I'll be quick. I'll skip over some things, but I want to make it clear that I do not speak for all victims and cannot come close to encompassing the lived perspectives of those who face a number of barriers in accessing the system and accountability for the crimes committed against them.

I think the Senate did good work on Bill S-12, but we're here to ask you to be even more ambitious. From our perspective, a better bill would feature amendments that do a few more things, like ensuring that prosecutors are directed to immediately inform the victim of their right to request a publication ban before it is ordered. Right now, the bill talks about judges doing that. It's not realistic. It doesn't happen in real life. Someone needs to tell victims before the ban has been put on their identities that they have the right.

You should clarify, in section 486.4, that publication bans are available for witnesses under the age of 18 and victims of sexual offences, because there's still confusion about this in the system.

The bill should also require prosecutors to act in accordance with the wishes of the victim. We like to use the word “consent”, but for some people that might not make sense in the context of the Criminal Code. The wishes of the victim should matter. You need to make sure that this is in the bill and that there aren't justice system actors like judges or Crowns who are acting without the consent or the wishes of the victim being taken into account.

We want to make sure that publication bans are not put on the identities of victims who have made it clear that they do not wish to be subjected to such an order.

We want to make sure that victims are provided a copy of their publication ban. Victim services simply do not give us that information. They don't know about publication bans. They are not equipped to do so. It doesn't happen in real life.

I also want to make sure that the way applications are dealt with for sexual offence victims is separated from section 486.5 of the Criminal Code. Right now, Bill S-12 lumps discretionary bans for any justice system participant with this type of publication ban for sexual offence victims. It doesn't make sense to have them combined. You should separate them and make it clear that there are only limited factors that a judge can consider when someone comes to them and asks them to remove their publication ban if it has to go to a hearing. Ideally, victims should just be allowed to have their publication bans lifted without having to go to a hearing.

Finally, we want to make sure that you expand the limitations section to ensure that trusted people, including professionals who provide support to victims, are not criminalized for communicating. Right now, the bill carves out a limitation for victims sharing their own information, but people who have to converse back and forth with victims when they need support should not be criminalized.

We want to make sure that there are no more egregious delays for victims removing their bans, like what happened to Patty or Maarika. We don't want any more victims having to hunt for and go to the court to try to find their publication ban orders, like what happened to “Deborah Lyn” this very week. We want to make sure that there are no more defence attorneys who are reintroducing publication bans on the names of victims who have already had their publication bans removed, like what happened to “Cassandra” last month, and we want to make sure that Crowns are no longer acting on assumptions without involving victims, like effectively every single person we have been connected to.

These suggestions are crowdsourced. They are based on the lived experience of victims. We have done our very best to consult on these recommendations very widely, but it is literally impossible to capture the nuance of every individual's issues, perspectives and interactions with the legal system.

We've done everything humanly possible to give you amendments on paper and to help you in this process, but the reality is that this should not be our responsibility as victims. We are not lawyers, but we are trying to do our very best to help you. Inevitably, some people will say that it's not good enough, but we're here now and we're doing what we can.

Quite honestly, the last year and this process have left so many of us feeling retraumatized, depleted and extremely tired. We have been placed in the very unenviable position of wondering if tweaking on the margins of the current Criminal Code will be good enough.

For that reason, these recommendations are not a panacea. This Parliament will still be confronted with the fact and the reality that complainants face a shameful amount of barriers throughout the continuum of seeking help and accountability, and long after.

Your police still don't believe us. Your Crown attorneys are not trauma-informed. Your judges don't understand how to properly apply the law, at our expense. You have not invested sufficiently in the resources outside of the system that can be there to provide important support that is culturally appropriate for victims of all different kinds of backgrounds. After Bill S-12 is complete, you will still have work to do, including educating Crown attorneys and judges, implementing guides for the provinces and territories, reviewing legislation to make sure you get it right and producing accessible information for victims, who deserve to know what is happening to them in the system.

The people behind My Voice, My Choice have done everything expected of us—and far beyond that, to be honest. I know you are facing tough deadlines and I know this is not the ideal way to write a bill, but here we are, and this is what we have. I want you to continue to consider our amendments, as many of you have, and I want to know that they matter. I want to know that the stories we've shared with you matter, so please do the honourable work and collaboration across party lines and take this seriously. If you do and if you amend the law so it's at least a bit better, we can finally rest and take some time to do the healing that a lot of us still need to do.

Thank you.

[Megan Stephens, Criminal and Constitutional Lawyer, Megan Stephens Law, As an Individual]

Thank you so much.

Good afternoon. Thank you for having me here today.

In my limited time, I want to focus on the treatment of publication bans in this bill.

My view, in relation to publication bans, has been informed by my work over the last two decades in criminal and constitutional law. I was a Crown attorney for more than 10 years. I was then the executive director and general counsel at LEAF, and, in January 2021, I launched my own practice to assist women and gender-diverse people in their encounters with the criminal justice system.

I now routinely represent complainants in sexual assault proceedings, including in relation to the lifting of publication bans—often on a pro bono basis—and also act for criminal defendants, predominately in the appellate context.

Through that work, I have seen first-hand that our legal system really struggles to respond in a trauma-informed way to prosecutions of sexual offences. It's no surprise to me that sexual assault remains among the most highly gendered and under-reported of crimes.

When publication bans were first introduced some decades ago, they were meant to encourage the reporting of sexual offences. Knowing that a publication ban is available does help some complainants come forward to report.

However, not every complainant wants a publication ban. Many find comfort in being able to share their experiences publicly with others. For those complainants, a publication ban that impedes their ability to do that can be retraumatizing—all the more so when those bans are imposed without their knowledge or agreement, or when they realize that the ban could actually lead to their criminalization.

With that in mind, I welcome the spirit underlying the proposed changes that would follow from enacting this bill.

Complainants need more agency when it comes to the imposition of publication bans, and they need more information to exercise that agency. If a publication ban has been imposed but a complainant doesn't want it, varying or revoking it needs to be easy. Perhaps most importantly, a complainant should never be criminalized for failing to comply with a publication ban on their own identity.

I think Bill S-12, as passed by the Senate in June, appropriately targets most of these concerns. It's much improved, but I want to talk about one key problem that I think remains today, and I heard some of this coming out in the questions for the Justice officials.

Bill S-12 would amend the code to impose a duty on prosecutors to inform the judge, after a publication ban has been ordered, that they have taken steps to inform the complainant or witness of a number of key things: currently, the existence of the order; its effects and the circumstances in which they may disclose information without being in non-compliance of the order; determining whether the person wishes to be the subject of the order; and informing them of their right to apply to revoke or vary the order.

I agree 100% that a prosecutor is well placed to inform a complainant about two key facts: that the publication ban has been imposed and that they have the right to apply to revoke or vary that order. That information isn't currently being shared routinely with complainants, even though a publication ban is routinely being imposed on almost every single sexual assault case that happens in this country. They need that information.

I'm concerned that the current language goes beyond a duty to inform by blurring the lines between a discussion about factual issues and an update and a discussion that requires them to dispense legal advice. The prosecutor is not the complainant’s lawyer, and they are not in a position to give a complainant independent legal advice. I’ve worn both hats, and one is not the same as the other.

Requiring a prosecutor to explain the effects of the ban or the circumstances in which they can speak without risking liability is crossing the border into legal advice. A complainant may have questions before deciding whether they want the ban to remain in place. They really need independent legal advice to weigh those competing considerations. They can't get it from a prosecutor. A discussion like that would be risky, not just for prosecutors but also for complainants. It could trigger disclosure obligations on the part of the prosecutor, and it could put complainants and prosecutors into a potential conflict of interest, since choices a complainant might make could affect the strength of the prosecution.

The bill really needs to be amended to impose a more limited duty to inform, which would require prosecutors to inform complainants that the ban exists, that it can be varied or revoked, and that they are entitled to get independent legal advice to make an informed decision about whether they want it to continue.

That brings me to my final point: You must accompany this bill with meaningful funding to improve access to free independent legal advice for complainants and better resourcing of organizations that support them. Complainants who can access independent legal advice from trauma-informed lawyers and community supports are much better equipped to manage the stresses of criminal proceedings.

Thank you. I look forward to your questions.

[The Chair, Liberal, Lena Metlege Diab]

What we will probably do is have a steering committee meeting—and we'll decide that on the 17th, because we haven't gone beyond Bill S-12 at the moment—so that we can decide on what needs to happen.

Are you okay with that?

[The Chair, Liberal, Lena Metlege Diab]

Mr. Maloney, thank you very much.

Please take a look if you have not; I think this was sent to you. Also on your desks there is a calendar. We really worked very hard in anticipation of this coming so that we don't waste any time, because we kind of foresaw that we might be starting late.

If you take a look, we have a break week—happy Thanksgiving, by the way, to everyone. When we return the week after that, on the 17th, the deadline will be noontime to submit amendments for Bill S-12. Then, on October 19, we will have our study of Bill S-12, our clause-by-clause. On the 17th, we'll have a meeting as usual, with witnesses on Bill S-12. Does that work for everyone?

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Taylor.

Thank you so much to both of you for coming. We really appreciate that.

You're free to go—subject to anybody contacting you outside of the committee.

I have probably only 60 seconds, given what just happened in the House and the bill now coming to our meeting.

I need someone to move a motion that all testimony received in our study on the subject matter of Bill S-12 be deemed heard in our study of the said bill.