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.

Criminal Code

[Larry Brock, Conservative, Brantford—Brant, ON]

Mr. Speaker, it is all about the supremacy of Parliament. The language in the dissenting report from the Supreme Court of Canada made it abundantly clear that this was the rationale behind the amendments made by Prime Minister Harper in 2011. To reflect upon that, it took the better part of 12 years before there was a successful charter challenge, which made its way all the up to the Supreme Court of Canada. That is quite telling, and I would again encourage my friend and colleague from the NDP to also review the dissenting opinion, because perhaps some of the answers she seeks are found in that opinion.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, I would first like to say that I will be sharing my time with the member for Abitibi—Témiscamingue.

There has been a lot of debate on this topic. I would like to present something to all political parties that has not been discussed in this House, which I really feel needs to be considered at committee. This topic has not been addressed whatsoever and I fear that we are creating a loophole that could victimize a lot more women and a lot more public officials. I really hope that the government and the justice committee give consideration to this issue.

It was sort of addressed by my colleague from Esquimalt—Saanich—Sooke when he started talking about additional offences that would cause somebody to be mandatorily added to the national sex offender registry, where he said that there would be two more offences added to a list for automatic registration. The first is sextortion offences, where so-called revenge porn is used by an ex against their partner who has left them and they are angry so they post intimate images without consent; the second is that any posting of intimate images without consent would result in automatic registration.

I am happy to be corrected, but I do not think in this bill that type of offence is automatic registration. I believe it is discretionary enrolment. That might be something in and of itself, if that's true, that the justice committee needs to correct. However, there is a bigger problem here. The definition that the Criminal Code would use to define “intimate image”, I believe, is stated as follows:

(2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,

(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

The definition of “intimate image” would not change in this act, but the circumstances under which intimate images are produced have dramatically changed in the last year. I would like to draw the attention of all of my colleagues of all political parties to a brief that was written by the University of Western Ontario's violence against women and children unit. Brief 39, written in April 2021, talks about policy options for something called “non-consensual deepnudes and sexual deepfakes”.

If members are not familiar with these terms, every person in this House needs to be. In lay terms, what this means that if they or their children post something to social media, post a picture of themselves, there is now technology that is essentially like X-ray vision. Therefore, if they google something called “deepnude”, they see that it is a technology that actually scrubs the clothing off persons and posts that. That is problem number one. There is also software that superimposes an image, like someone's face, on top of somebody else's body. These are super convincing, incredibly real and hugely problematic.

In the U.S. in August, there were several articles that were posted; one called “Revenge Porn and Deep Fake Technology: The Latest Iteration of Online Abuse”. Some jurisdictions in the United States have enacted some form of revenge porn legislation. However, when they put this legislation through their respective legislatures, it did not consider deepnudes or deepfakes because of the definition of an intimate image.

Going back to the definition in the Criminal Code of what an intimate image is, “there were circumstances that gave rise to a reasonable expectation of privacy” and, going forward, “the person depicted retains a reasonable expectation of privacy at the time the offence is committed.”

I can just see legions of lawyers working on behalf of deepnude apps and people who are generating these for profit, arguing that somebody, by posting their image online, abandons their right to privacy; and, therefore, because the definition of intimate image in the Criminal Code does not articulate specifically images that were generated using this new technology, they did not have a reasonable right to privacy.

I can guarantee that this is what is going to happen. Sometimes I feel like I am standing in the House and I am like Cassandra, doomed to know the future and nobody believes me. However, this is an instance where Parliament should not be rushing through legislation that has such an incredibly profound impact on women. This is how women are being abused now and this is how children are being abused, and our laws have not caught up.

Going back to the brief that I mentioned, I draw colleagues' attention to some of the policy options that Western University outlines. I will read the entire section:

1. Criminalize the production and distribution of non-consensual deepnudes and sexual deepfakes.

Currently, Canada has no law criminalizing non-consensual deepnudes and sexual deepfakes. There are other legal responses that individuals may be able to utilize like defamation...depending on the context.

However, it is not certain. In fact, my analysis shows that the tort of public disclosure of embarrassing private facts would not cover this situation. If we take this lack of law in Canada, which is hugely negligent and hugely behind the world, and add that the Supreme Court ruling has basically eliminated the mandatory listing of somebody on the registry, how are we disincentivizing people from creating deepfakes and deepnudes of their exes and putting them online? There is virtually no guarantee of criminal repercussion and no guarantee that they will be on the sexual offence registry. In fact, somebody might even be looking at creating a business off of this for those who are not smart enough to figure out how to do it themselves, and it is shockingly easy.

I want members to picture themselves for a moment, just to drive this point home. We are in the middle of the next election campaign, and a member who is out door knocking looks at their phone and sees that they have been scrubbed by X-ray vision. It is all over the Internet for the next week. The member will not have any recourse because we have a legislative gap and we do not have the incentive to put someone on the national offender registry afterwards. Someone could have cost that member their career because of this information, and there is no repercussion for them afterwards. I am relating this to try to twig members' interest using self-interest, but we all understand the bigger implication here, which is the exploitation of children and women.

This is a powerful tool for abusive men to victimize women and their spouses. Women and spouses will very quickly, if they are not already, be under threat of this: “I am just going to scrub your clothes off”, or “It doesn't matter if you don't send me your nudes; I'll just make them anyway.” We know that is happening right now, and we know that it is happening to our kids with Snapchat and all of these other things. Half the time we do not even know what app our kids are on anymore. It is tough.

The other thing that this lack of law does is it makes it less possible for people to teach consent properly. We have to be able to educate our children and ourselves on what consent means. If the law has a giant gap in what artificial intelligence images are creating, then we have a problem.

This legislation and the review at the justice committee present our Parliament with an opportunity to address this issue in a meaningful way for the first time. Colleagues, I implore you, particularly members of the justice committee, that when the bill goes to committee, invite people who have expertise in this area so that we understand the prevalence of this situation and what some other jurisdictions are doing. Also, think about amending the definition of “intimate image” so that it specifically deals with deepfakes and deepnudes. We should be talking about it being illegal and immoral and saying that someone should end up on a sexual offence registry just like any other offender. I almost think it is worse for people to do this, just to be fair.

I am putting this on the record for future court challenges that might be looking at this parliamentary debate: The intent of this legislation should be to ensure that people who use artificial intelligence deepfake and deepnude technology to victimize women and children are on the sex offender registry. We should make that absolutely clear.

I will close by saying that this is why we need to review legislation. No member has talked about this. I hope the justice committee spends adequate time looking at all of these perils before this legislation is rammed through.

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Speaker, it is always a pleasure to hear from my friend from Calgary Nose Hill, who I have to applaud for founding the emerging technology caucus, which I am proud to co-chair with her. She calls herself Cassandra. I do not think that anybody believes that nobody understands or believes the prophecies she tells. I think she has a lot more credibility than that.

Can the hon. member give us an example of a couple witnesses she would ask us to call to committee to better understand the potential AI ramifications and the amendments we should be making in this area?

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, Western University's brief has a pretty good outline of what some of the definitions of these are, and I would go back to it, as it has been thought about. I think there are two dozen references of other literature in there that I would draw my colleague's attention to.

I would ask colleagues on the justice committee to intersect with some of the work that is being done on the industry committee regarding Bill C-27, the artificial intelligence and data act, to ensure that our laws are harmonized as we move forward and make sure that is done in a way so women, others, people in public life and children are not victimized.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Mr. Speaker, I am wondering if my friend and colleague from Calgary Nose Hill has also thought about this notion. We all know that a lie can spread around the world before the truth has a chance to put its pants on in the morning.

What I am getting at here is that it is not just the potential victimization of women and children, which is a horrible thing, but each and every one of us in this room has been seized with the conversation of foreign interference, especially in our electoral process.

Can members imagine a foreign state actor doing something like this during an election campaign to discredit or humiliate us in our democratic process? Does she have any thoughts on that?

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, it is not a comfortable topic for me to discuss, but I have been victimized online. I try not to make debates about me in the House because I represent 120,000 other people.

However, if I saw something like this of me spreading and going viral online, through Telegram channels, WhatsApp or whatever, I think it would victimize me. It would devastate anyone in this place.

Certainly, there are people and agents who would like to undermine our democracy. This is war, and our legislature, our Parliament, has a chance to close the door to the actors on this. I encourage a rationed amendment to ensure that we are closing this loophole and that people who utilize technology to do this are not, as you say, Mr. Speaker, able to do indirectly what they cannot do directly.

It is up to Parliament to ensure that the spirit of this act captures that with regard to deepfakes and deepnudes.

[Lori Idlout, NDP, Nunavut, NU]

Uqaqtittiji, I only had a chance to look at our House notes and not the bill specifically, so I am not understanding the bulk of what the member spoke about on AI and consent, and why it is not mentioned or has not been discussed during the debate so far.

I do see that Bill S-12 talks about discretion being given to judges for those who are at risk of reoffending. Could the member speak more to what Bill S-12 needs to do to make sure that discretion is not widened so much so that public safety is made a concern? This is so we can do a better job at making sure that we are protecting victims.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Mr. Speaker, I agree with the member's sentiment.

Many colleagues in here have talked about how the bill does not have an adequate and comprehensive enough list of what should be included, in terms of convictions or areas of conviction, from a mandatory perspective on the national sex offender registry list. This is why it is so imperative for the justice committee to have a fulsome study. I think the area she mentioned is deeply important.

I would apply what she said to the concept that I brought forward. It is so easy to make these images. Somebody could do it thousands of times and never be put on a sex offender registry. It is not even a loophole. We could drive a bus through it. Let us patch that up at the justice committee to keep our kids and women safe.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, before I begin my speech, I would like to take a few moments to acknowledge the passing last night of a passionate constituent of mine, Gilles Laperrière. He was a great hockey enthusiast, a volunteer, a founder and a builder. He was a recruiter for the Montreal Junior Canadiens back in the day. Largely thanks to him, Réjean Houle was able to get on the ice at the Montreal Forum, as were many other hockey players who have helped put Rouyn‑Noranda on the map as a major incubator for the National Hockey League.

Gilles Laperrière was highly engaged. He was instrumental in forming the As de Rouyn‑Noranda and the Citadelles de Rouyn‑Noranda. For about 50 years, he looked after the Dave‑Keon centre, Rouyn‑Noranda's arena. He was the driving force behind the École du hockey du Nord‑Ouest, which he co-founded with Laurent “Pit” Laflamme, someone I would also like to commend. When I was young, Gilles made it possible for me to see the Stanley Cup for the first time. It was brought there. He was also behind the arrival of the Huskies, who will be in Gatineau tonight. To honour him and show how important he was to the community, we named our mascot “Lappy”, which was Gilles' nickname. I would like to recognize Gilles and offer my heartfelt condolences to his family, especially Émilie, Kevin, Zachary and Eliott.

I would also like to thank a new member of my team. I am fortunate to have a parliamentary intern here with me, Ahdithya Visweswaran, and I want to acknowledge her contribution.

I will now turn to Bill S‑12, which aims to strengthen the national sex offender registry system and respond to last year's Supreme Court decision. The Bloc Québécois's commitment will go much further. We are prepared to work very hard to include provisions that protect victims's rights.

This bill tries to reinstate the automatic registration provisions that the Supreme Court struck down, while including certain conditions that allow judges to use their discretionary authority to order whether or not an offender should remain on the registry for life. The bill also addresses publication bans, sometimes imposed without the victims' knowledge, which currently prevent victims from publicly sharing their stories and messages. That is why I felt it was important to rise and speak today. I thank my colleague for Calgary Nose Hill for sharing her time with me. Although these publication bans are sometimes intended to protect the identity of the victims, they often have the opposite effect by protecting the identity of the assailants.

This afternoon, I was very fortunate to meet representatives from My Voice, My Choice: Kelly, Morrell, Brandy, Carrie and Jessica. I find these courageous women, these survivors, very inspiring because they are agents of change in areas where it is not often easy to speak out. They advocate for victims, asking that their wishes be prioritized and central to the decisions being made. It should be up to victims to choose whether or not to lift a publication ban under the current provisions of the Criminal Code of Canada.

While the Senate has taken an admirable first step, it is our responsibility as parliamentarians to build on the work already undertaken. To that end, we must consider the amendments proposed by survivors of sexual violence who are represented by My Voice, My Choice. Their personal experiences with sexual violence, the legal system and publication bans form the basis of the amendments they wish to see incorporated into this bill.

Survivors' calls to action are simple: Clarify that only victims of sexual offences and witnesses under the age of 18 are covered by a publication ban under section 486.4; ensure that prosecutors are directed by the judge to immediately inform the victim or witness of their right to request a publication ban; require prosecutors to present requests with the consent of the victim or witness and on their behalf; provide the victim or witness with a copy of the order once a publication ban is in place; prevent unwanted publication bans from being imposed on a victim or witness when the prosecutor or judge has been made aware of their wishes; allow for interim publication bans that can easily be lifted until the victim or witness makes their wishes known to the prosecutor or judge; clarify the process for modifying or revoking a publication ban, separate from the discretionary bans under section 486.5, by ensuring that the victim's interests take priority and that their freedom of expression is respected; broaden the limitations section to ensure that trusted persons and professionals are not criminalized for communicating information related to the identity of the victim or witness when providing support.

Over the past year, I have met and heard from many victims of abuse and mistreatment, including some victims of sexual assault. I want to thank the athletes for the trust they placed in me. Their very moving accounts enabled us to give a voice to these athletes who, through no fault of their own, were victims of these toxic environments in sport. Their courage must absolutely be met by concrete action from parliamentarians in the House of Commons.

The culture of silence in the world of sport is often perceived as a given, which can have both positive and negative consequences. On the one hand, it can strengthen athletes' concentration and foster a strong team spirit, since excessive communication can disrupt performance. On the other hand, this silence can sometimes mask problems such as harassment, discrimination and injuries.

It is essential to strike a balance between respecting this tradition and promoting a safe and fair sport environment where the athletes feel comfortable expressing themselves without fear of reprisals. Publication bans for the victim complainants line up with everything found in the sports community to deal with reports by whistle-blowers, who are often the victims themselves. We need to measure the harm done to the victims and that is often what justice underestimates. We need to give the victims the choice to participate in this choice. We also need to ensure that the information is made available for making these choices.

The government gave the Office of the Sport Integrity Commissioner, or OSIC, within the Sport Dispute Resolution Centre of Canada, or the SDRCC, the mechanism for handling complaints in sport. There too, unfortunately, they rely on the status quo, voices are silenced and investigations are not launched when national sports organizations are suspected of using strategies for silencing the victims who are key to their organizations.

Need I mention the numerous independent investigations that have been conducted in the world of sport? I could list Hockey Canada, Canada Soccer, Gymnastics Canada, Volleyball Canada, Canoe Kayak Canada, Canada Artistic Swimming, Water Polo Canada, Bobsleigh Canada Skeleton, Athletics Canada, Cycling Canada and many more. How many more victims need to come forward to demand an independent public inquiry into the world of sport? I call on all of my colleagues to continue their hard work.

At a press conference on May 11, the Minister of Sport publicly expressed her government's commitment to an independent public inquiry into abuse and mistreatment in sport. Five months later, things seems to have stalled. Is the work of two parliamentary committees—whether the Standing Committee on Canadian Heritage or the Standing Committee on the Status of Women—and the approval of the MPs who sit on those committees enough to ensure that this public inquiry will go ahead? The aim is to shed light on important aspects of the issue and give a voice to all those concerned about the future of sport.

All parliamentarians here in the House agreed to investigate the matter. The harm being done to victims and athletes must stop immediately. That is one of the things that Bill S‑12 will accomplish, but we have a responsibility to go even further.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Madam Speaker, I thank the member for his speech and his work on the Standing Committee on Canadian Heritage and its study of safety in sport.

Does he think that there are strong enough measures in this bill to discourage crimes against athletes?

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Madam Speaker, I thank my colleague from Sarnia—Lambton for her question and for her committee work.

The work of the Standing Committee on Canadian Heritage, like that of the Standing Committee on the Status of Women, was done in collaboration. I think that shows what is best about Parliament, namely when all parliamentarians from each party come together because they have a desire for justice and a desire to improve sports. Sports are an important symbol in our culture. As such, we must go even further.

As part of this study, I was told about non-disclosure agreements. In my opinion, sport organizations abuse them. When we are presented with a particular situation, an independent organization, a so-called third party, is asked to investigate. They are told that a particular coach has allegedly abused a particular athlete. However, that athlete is not the only one who was abused and other victims are named. Those names are noted. The result, based on testimonies heard in committee, is that non-disclosure agreements will be reached with each of those individuals. Why? It is to protect the image of a sport federation instead of putting justice first. We will never be complicit in that.

[Lori Idlout, NDP, Nunavut, NU]

Uqaqtittiji, today being the national day of action for MMIWG, we know all too well that indigenous women, girls and two-spirit victims who have been taken or murdered do not get to tell their stories. When the Standing Committee on Justice and Human Rights supported the NDP's proposal to make a recommendation allowing victims the right to opt out of a publication ban, this was an important way to make sure victims can tell their story.

I wonder whether the member agrees that this kind of recommendation, which would help increase the understanding of how they got to that situation, is what would help make sure we have fewer victims of this nature.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Madam Speaker, I thank my colleague from Nunavut for her sensitivity to this issue.

Indeed, people cannot remain silent. Being a victim a first time is a tragedy, but what we see in the patterns is that victims are often victims a second time because they lose their name and their voice. That is totally unacceptable.

I think, if progress is to be made in this Parliament, it must also be possible to identify those victims. It must be possible to hear from them, to recognize them and to do all the upstream work to move toward true reconciliation.

Yes, the member can count on my support and that of the Bloc Québécois because there must be justice.

[Denis Trudel, Bloc, Longueuil—Saint-Hubert, QC]

Madam Speaker, I thank my colleague for his wonderful, researched and thoughtful speech. It is nice to see that he has also heard from people who are very concerned by this issue.

I spoke earlier about something that affects me. I will ask my colleague a question because, clearly, women are still afraid of the justice system.

In Quebec, sexual assault help centres have published figures showing that only 5% of victims of sex crimes file complaints. Of the cases that go before the courts, only 3 of 1,000 lead to charges.

The justice system still scares people. Charges are not laid. Clearly, people are not paying for their crimes.

Does my colleague have any possible solutions that could be proposed to address this problem?

[The Assistant Deputy Speaker, NDP, Carol Hughes]

I would ask the hon. member to give a brief answer.