Justice Committee on Oct. 3rd, 2023

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Mr. Fortin.

Next up is Mr. Garrison.

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

Thank you very much, Madam Chair. I'd certainly like to welcome you to your role as chair in our first public meeting.

Of course, I'll echo the comments about welcoming the minister here today. With his previous experience on the committee, I'm sure he'll be willing to come back and speak to us many more times. As he's a new minister, there are several things I'd like to talk to him about, such as decriminalizing HIV non-disclosure, decriminalizing sex work, reforming our extradition laws and the bill that's before the House, Bill C-40, on the miscarriage of justice. However, I do accept the urgency with which we're dealing with Bill S-12, so I will limit my comments and questions to Bill S-12 today.

I fully accept the urgency of maintaining the sex offender registry, but I thank you, Minister, for emphasizing that Bill S-12 not only preserves the registry but also improves the registry. We have had some cases in my riding where people have been added to the sex offender registry and no one in the community would reasonably believe that they should have been added. Sometimes those are people who are neurodiverse or who have intellectual disabilities and have ended up in the sex offender registry. I have spoken with advocates and those people. This bill will provide an opportunity, or that's the way I see it, for a judge to decide whether all those people should automatically be added.

I just wondered if you were aware of those kinds of cases.

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

Let me say, first of all, thank you for your kind words, Mr. Garrison, and thank you to you and your colleague Laurel Collins for the extensive work both of you did in addressing the publication ban piece.

Absolutely, I've heard about those cases, and I think that's why it's important. It dovetails a bit with Mr. Moore's earlier question and the idea of judicial discretion being an important backstop. I found it a bit troubling that the public safety committee study in this Parliament in 2010 suggested that there were two types of discretion at the time—prosecutorial and judicial—and suggested getting rid of prosecutorial, while maintaining judicial.

The government at the time under Stephen Harper decided to get rid of all discretion altogether, and we now see the Supreme Court's response to that decision. Safeguarding the discretion but providing guardrails and criteria that surround it is really important, and one of the guardrails in the legislation is the age and personal characteristics of the victim.

A judge needs to turn their mind to exactly that type of situation to determine whether the presumption should be rebutted and a person should not be added in a given context.

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

One of the results we've seen is that, sometimes, the limited resources we have and the limited resources law enforcement have are wasted when they're applied in a universal kind of manner, rather than picking out those who are at most risk of reoffending.

I also want to say the second aspect of this bill is also urgent. Certainly, in the study on victims in this committee, we heard from the victims of sexual assault about what, I think, people haven't really thought about, which is people who were prosecuted for talking about their own sexual assault cases.

Sometimes, this is a question of agency for them. They feel there's nothing shameful for them in what happened, and they would like to be able to speak about it. Sometimes, some of those victims felt it was a matter of public safety and that other members of their family or community needed to know about the case. By “publication ban”, we think of putting it on TV or putting it in a newspaper, but the publication ban meant that they couldn't talk about it with other people.

I wonder if you're familiar with those prosecutions and restrictions on victims.

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

I absolutely am, and I'm informed by some of the work that was done at this committee.

Perhaps you were here when Morrell Andrews testified at this committee in October, last year. Her quote was:

Begging for my right to speak was humiliating. The court's dignifying the offender with an opportunity to argue why I should be permanently silenced was infuriating, dehumanizing and traumatizing. I told myself to remember what it felt like to be shattered by the legal system, and that one day—for myself, for others I have met and for those who would come after us—I would try to do something about it.

I think this bill is doing something about it.

Being a victim is never easy. We don't need to revictimize victims. What we're doing through this legislation, I believe, is empowering victims to take control of their own narrative. There are some guardrails surrounding that issue, and they're required when a publication ban being lifted might affect another individual, but fundamentally, this is about empowering victims and other witnesses who have already been traumatized and ensuring that we no longer traumatize them again.

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

Again, people are somewhat surprised by the number of cases. I wonder if you have any figures on the number of times publication bans have been imposed in Canada.

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

I don't have that, and Mr. Taylor is whispering in my ear that he doesn't have that either.

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

I kind of knew the answer to that question. It's something I wish we had. We tried to find out before. I'm not quite sure why that's such a difficult problem, but I guess if we have some more time with the officials, we will be asking about it again.

Certainly, the number of people I've talked to and we've heard from at the committee is quite large in terms of publication bans. Most of those people argue that publication bans were really informed by an archaic view of sexual assault being shameful for the victim. Therefore, there is an urgency that these bans not be imposed going forward.

I wonder if you share the sense that not only is the sex offender issue urgent, but it's also urgent that we make the other half of the changes in this bill.

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

I would agree with you, Mr. Garrison, on the urgency of addressing publication bans.

As I mentioned to Monsieur Fortin, if you take a nuanced view of how publication bans have operated, sometimes they're an overly blunt instrument that disempowers a victim. What we're trying to do is ensure—in the case of therapy or speaking with friends, for example—that the victim has the ability to pierce through the publication ban without being subject to the threat of potential prosecution. I think that's what this bill fundamentally does, and that's really important in the provisions.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Mr. Garrison.

Thank you, Minister, as well.

We will now move into our second round for five minutes. I will go to Mr. Caputo.

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

Thank you, Madam Chair.

Welcome to your new role, Minister, and congratulations on your new role.

Minister, you said at the outset that sex offences against children are despicable and you condemn them in the strongest terms. I think we all would at this point. You've also spoken about Bill S-12 and its role in the protection of children.

I take it that you would support the elimination of house arrest as a sentencing option for those who are convicted of sexual offences against children.

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

Thank you for the question, Mr. Caputo.

What I would say is that it's really important that we have different tools available to ensure that judges have the ability to impose sentences that meet the crime, so to speak, or that are proportionate to the crime. I think what's important is that in instances of....

I believe where you're going is this notion of a conditional sentence order. Conditional sentence orders are available in only very rare situations. One would have to be sentenced to incarceration of less than two years. Most importantly, they only apply to offenders who do not pose a threat to public safety. In the context of a child sex offender, if a judge believes that the person poses a threat to public safety, the notion of house arrest is not on the table pursuant to legislation that's been passed by Canada.

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

Minister, I want to go back to that. You talked about the denunciation and the denunciatory element, and you're talking about public safety. There's an element of justice here as well. You're talking about public safety. We can talk about CSOs a lot here in the next few minutes, but strictly from a justice perspective, the person who is the victim of the sexual offence, the child, is suffering and literally imprisoned psychologically for life.

Are you saying that the punishment for the person who offended against the child—the child who is imprisoned for life psychologically—should be that they serve house arrest for under two years? Is that your position?

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

That is not my position. I want to make sure that the record is clear. A person who has been convicted of a sexual offence against a child is actually subject to a mandatory minimum penalty. Therefore, a conditional sentence order is not available to them. The possibility of house arrest doesn't exist. I'm advised of that by my officials.

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

If I have your position correct, your position is that a person cannot get a conditional sentence for a sexual offence against a child. Do I have that right?

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

Child-specific sexual offences are subject to a mandatory minimum penalty, which renders them ineligible for a conditional sentence order. That's my position.

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

Okay—and those haven't been struck down.

Let's say section 151 of the Criminal Code. I'm thinking back to a case that I asked you about, where a mother offended against a seven- or eight-year-old child. The judge reasoned that it was the first time it had happened and imposed a conditional sentence order after trial, so there was no mitigating value. It was overturned on appeal. I believe the charge was under section 151, but I don't recall that the appeal was on the basis that the sentence was illegal. It was that it was not proportionate. To my understanding, and maybe the official can correct me—I would defer to Mr. Brock—a number of those mandatory minimums have been struck down.

Is it your position that a person cannot get a conditional sentence order under, say, section 151 of the code, or section 271, sexual assault, if that is a sexual offence against a child? Is that your position?

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

I'm going to defer to Mr. Taylor with respect to the two provisions you just cited.

The broad-scale proposition about child sexual offenders is that people who are convicted with respect to a sexual offence against a child are subject to a mandatory minimum penalty. Anyone who is subject to a mandatory minimum penalty is not eligible for a conditional sentence order, such as house arrest.

I think the important aspect, to respond to you, Mr. Caputo, is that I share your concern about anyone who would commit a sexual offence against a child. That is why I want the sex offender registry restored. That is why we've made sure to double down on the idea of an offender against a child being subject to an automatic registration and not subject to the judicial discretion.

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

I'm sorry. I have only 30 seconds, Minister.

If there is any wiggle room on this, where somebody for a sexual offence against a child, including Internet luring under section 172.1, sexual interference or a sexual offence, for there to be a conditional sentence order, would you be prepared to plug that—yes or no?

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

I think it's important to...and if you're making an oblique reference to your private member's bill, I'd be—

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

I'm not. I'm just asking generally.

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

Fair enough, Mr. Caputo.

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

We have five seconds. Is it yes or no?

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

I would be open to looking at any aspects that will help keep children safe in this country, yes.

I would invite Mr. Taylor to perhaps respond to the specific provisions cited by Mr. Caputo.

[The Chair, Liberal, Lena Metlege Diab]

Yes, please, go ahead. It's an important question. If you don't have an answer today, you're also coming back on Thursday, I understand.