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]

In terms of the requirement that victims be informed when there's a publication ban, does the current text of Bill S-12 require that victims be informed if they have a right to request a publication ban, if they should so desire, or is this simply an after-the-fact notification?

[Matthew Taylor]

There are amendments in Bill S-12 that were passed by the Senate and that speak to the issue of the accused.

The concern that was discussed in the Senate when those amendments were debated was whether that would suggest to the courts or the criminal justice system that an accused currently has an interest in these proceedings and that Parliament is presumed to be acting for a reason. The counterpoint was made that this was really meant to reflect the status quo of the law.

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

Would the text of Bill S-12 do anything to clarify that situation?

[Matthew Taylor]

Thank you for the question.

In essence, you explained the Crown prosecutor's role. There are a number of ways to inform victims about the criminal justice system. I think the government recognized that it's important to strike a balance between adequately informing the victim and respecting the Crown prosecutor's role.

When Bill S‑12 was in the Senate, there was debate about the connection between disclosure of information and the Crown prosecutor's role.

I think the issue has more to do with a phrase that appears in three different places in the bill.

The text reads, “in which they may disclose information that is subject to the order without failing to comply with the order”.

I think the issue is whether, for the Crown prosecutor, this phrase is compatible with the kind of information that can be disclosed to the victim.

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

Thank you, Madam Chair.

Happy birthday, Mr. Taylor.

My Conservative Party friend didn't have that information, or I'm sure he, too, would have wished you a happy birthday.

Mr. Taylor and Ms. Wells, I, too, am concerned about that aspect of the information to be disclosed to victims, which I see as essential. Obviously, Bill S‑12 covers more than just that. It also covers registration on the National Sex Offender Registry, which I believe almost everyone agrees on, so I don't want to waste time discussing that.

However, with respect to disclosure of information to victims, yesterday I heard the minister raise questions about conflict of interest. You even talked about that earlier with my Liberal party colleague.

I listened to the answer you gave Mr. Mendicino about the Crown prosecutor's role. My understanding is that the Crown prosecutor represents the public interest but that they're a disinterested party. Correct me if I'm wrong, but their role is to ensure that the facts are clearly and fully established before the court so that a just decision may be rendered. As such, I don't see how there could be a conflict of interest.

I can see that there might be a role conflict and the Crown prosecutor might wonder how to ensure that the victim has a good understanding of the situation so that, six months, a year or two years down the line, if they charge the victim for violating a publication ban, the victim can't say the Crown prosecutor or their colleague misinformed them at the time.

That seems like a legitimate concern to me, but I humbly suggest that there must be a way to guard against that kind of situation. I think the information the Crown prosecutor discloses to a victim is essentially the same in every case. It might have to be adapted depending on the case, but there's probably a way to standardize the information to be disclosed to victims.

Can you comment on that? What do you think? Is there a way for the Crown prosecutor to make sure victims are properly informed without placing themselves in a conflict of interest?

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Happy birthday.

I'd like to take a brief moment to thank the survivors and victims who are present here to testify. On behalf of the members of this committee and all parliamentarians, thank you for your advocacy. I can tell you that, in my experience—not only in this job on the Hill but also before, as an actor in the criminal justice system—your work is incredibly important to this legislation. We thank you very much for bringing forward the ideas you're going to articulate later today.

Colleagues, we know Bill S-12 proposes to do three things: strengthen the Sex Offender Information Registration Act, make certain amendments to the International Transfer of Offenders Act and, finally, strengthen some of the rights that ought to be afforded to victims in the context of criminal justice proceedings. I think we can all agree there is still a lot of work to be done there.

I want to zero in on the concerns that have been expressed by victims' advocates and survivors themselves about how we can ensure they are provided with timely and accurate information on applications that involve publication bans. A couple of days ago, we heard from the minister, who expressed concern about one of the amendments that were put forward by the Senate, which would require that Crown prosecutors communicate directly with victims about said publication bans.

Before I get into those concerns, I'm going to give the officials an opportunity to elaborate on that, Madam Chair. I think we can all agree that it is important for victims to be treated with professionalism, courtesy and, more importantly, sensitivity—in particular, taking a trauma-informed approach. That's regardless of who is communicating with them, whether it is a Crown prosecutor, a member of the law enforcement branch, a member of the profession, or any of the social service providers in the system. I think we can all agree we have to do better there.

That said, the minister said he was worried the Senate amendment as expressed would infringe on prosecutorial independence. I'd ask you—very briefly, in a matter of seconds—to tell us what the job of a Crown prosecutor is. I'll then come back to you and ask a follow-up question.

[Joanna Wells]

They will be presumed to be registered under the proposals in Bill S-12. That is the answer. They're all presumed to be registered.

What the bill does is list risk factors, as well, for judges to use to exercise their discretion. Those factors were intended to counter the criticisms and concerns raised by the minority judgment to curb the risk they saw in judicial discretion.

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

I want to zero in on sexual offences against children.

Bill S-12 requires it to be mandatory that a person's name be listed in the registry if they are convicted of a sexual offence against a child, but only if it was prosecuted by way of indictment and the sentence was at least two years.

Why is it not for offenders—child molesters—who were prosecuted by way of summary conviction? Aren't they equally dangerous?

[Joanna Wells, Acting Senior Counsel, Criminal Law Policy Section, Department of Justice]

Thank you for your question.

I think I will start answering the question by reiterating what the minister said when he was here, which was that if Bill S‑12 is enacted, everybody who receives a conviction for a sex offence will be required to register, unless they can demonstrate that the registry is overbroad or grossly disproportionate. It's a very strong presumption of registration for those offenders.

The data you cite, which the minority articulated, was the arguments that the Attorney General of Canada made before the Supreme Court when he intervened to defend the legislation when the Supreme Court heard arguments on that. That data was not sufficient to uphold the law. The data that is now being relied on for the two categories of automatic registration relates to repeat sex offenders. Those individuals pose an even higher risk of reoffending than first-time offenders, which was the target of the original legislation.

For the other category of automatic registration for children—victims under 18—a sexual interest in children is a very well-validated risk factor for sexual recidivism. Coupled with the two years or more on indictment, it is expected that this constellation of factors will provide the evidence that the government would use to justify those two automatic categories.

However, everyone will be presumed to be registered.

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

Thank you, Madam Chair, and thank you, witnesses, for being here.

On behalf of all of us, I apologize for the delay. We had very important work in the House of Commons today, voting on precisely the bill we're discussing here, Bill S‑12. Thank you for being here and thank you for lending your expertise to this very important discussion.

Bill S‑12 is about amending the Criminal Code as it relates to the national sex offender registry. That discussion was instigated by a Supreme Court of Canada decision, R. v. Ndhlovu.

I just want to quote from the minority. It was a split decision of five to four. The minority cited evidence that was apparently before the trial judge. In their opinion, “offenders convicted of a sexual offence are five to eight times more likely to reoffend than those convicted of a non-sexual offence.” They also said that “it cannot be reliably predicted at the time of sentencing which offenders will reoffend.” Then the minority came to this conclusion: “In the face of that uncertain risk, Parliament was entitled to case a wide net.”

We had the Minister of Justice here just the other day. He made reference to social science data that, in his opinion, supported this current legislation, Bill S‑12, which I would say has a lower standard when it comes to making it mandatory to have people registered on the sex offender registry.

Are you aware of the data he was referring to? Does it contradict the evidence that apparently was before the trial judge and that the minority judges refer to?

[The Chair, Liberal, Lena Metlege Diab]

No. That's a fair point.

We will have a four-minute round with the witnesses. We'll start with that. Our apologies for the delay.

Welcome to meeting number 76 of the House of Commons Standing Committee on Justice and Human Rights.

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

After the first panel, I'll ask for a motion on Bill S‑12, but I think right now, due to the fact that we're so delayed, we'll simply start with questioning the witnesses for four minutes each.

I will start with Mr. Van Popta, please.

Criminal Code

[The Deputy Speaker, Conservative, Chris d'Entremont]

It being 3:55 p.m., the House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill S-12.

Call in the members.

The House resumed from October 4 consideration of the motion that Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act, be read the second time and referred to a committee.

[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.

[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.