Justice Committee on Oct. 3rd, 2023

[Matthew Taylor, General Counsel and Director, Criminal Law Policy Section, Department of Justice]

It's as you wish. Perhaps I can just very quickly confirm what the minister said.

Paragraph 742.1(b) is the rule that says if an offence is subject to a mandatory minimum penalty, it is not eligible for a conditional sentence, and in section 151, which Mr. Caputo referenced, it's punishable by mandatory minimum penalties.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

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

Sir, was that offence—

[The Chair, Liberal, Lena Metlege Diab]

No, no, no.

[Voices]

Oh, oh!

[The Chair, Liberal, Lena Metlege Diab]

I will now move to Madame Brière for five minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madam Chair. Congratulations on your election.

Good afternoon, Minister. Thank you for joining us and congratulations on your new appointment.

It would appear that in practice, it can take a long time before victims can meet a judge or a justice of the peace and obtain all relevant information about their right to lift a publication ban. Not only that, but neither the court nor the attorney is required to inform victims that a publication ban has been imposed. It is therefore difficult for victims to comply with a ban when they don't even know that it has been imposed.

In your opening address, you pointed out that the sentence for failing to comply with a ban is sometimes harsher than the offender's sentence. Who informs victims of their right to request a publication ban, and when is that done?

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

This situation is addressed in several parts of the bill, Mrs. Brière.

As I previously mentioned, the first thing to be done is check a box on the form indicating that victims are to be informed about what will be happening henceforth. The second thing is that victims may request that a publication ban be lifted. There are circumstances in which such a request must be granted, but from time to time, a hearing may be necessary if the anonymity or personal details of another person, another witness, for example, is affected by this request.

The important thing for everyone to remember is that this bill will empower victims and witnesses and enable them to control and communicate their own information when required, by complying with a few conditions.

Ms. Wells, do you have anything to add on this?

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

No, that covers it.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much.

During the victim rights study, you were asked to make the publication ban request process much easier.

When the ban continues, does it also apply when the person is in therapy or speaking with friends, for example? In other words, are victims required to comply with the ban when they are in therapy or engaging in personal discussions?

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

That's interesting, Mrs. Brière, because it pertains to everything I mentioned about the Senate. The Senate proposed eight or nine things. As I mentioned in my opening address, we truly want to give people the freedom to speak with their families, friends or health professionals such as therapists.

From what I understand of the Senate amendments, the aim is to broaden the divulging of information or disclosure that could be possible. We want to make sure that we have guardrails there such that the information is disclosed for certain purposes but not for any purpose.

That's what I was driving at in my opening remarks. It's important to really tailor the response accordingly.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

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

The patient-therapist relationship is extremely important, and can help a victim to begin the rehabilitation process and also go to trial.

It can actually enhance reporting requirements when people understand that they won't be subject to the blunt force of an overly comprehensive publication ban.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

Can someone other than the victim also request the lifting of a publication ban, like a spouse, a relative or, in the event of death, a victim's adult child?

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

I'm certain it can't be done by the accused. It applies only to a victim or a witness.

I will defer that question to Mr. Taylor, because I think he had further clarification.

[Matthew Taylor]

Based on the wording of the bill, it's for the victim or the person protected by the publication ban, and therefore not for the accused, as the minister explained.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Madame Brière.

We'll now move to two and a half minutes with Monsieur Fortin.

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

Thank you, Madam Chair.

In my earlier questions, Minister, I requested an explanation of the conflict of interest which you felt would prevent a Crown attorney from clearly explaining the ins and outs of a publication ban to a victim. I also asked you a subsidiary question, which was to suggest some alternatives. I would now like to hear what you have to say on this.

You no doubt recall that back in the day, when you were a member of this committee, we heard victims complain that they didn't know what was going on, that they were not aware of the existence of publication bans, and that they didn't quite understand how it all worked, or how to lift such a ban if they wanted to. If the Crown attorney is not the person who explains all this to victims involved in a trial, who is, and how would it work?

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

Thank you very much.

According to this bill, it's up to the judge to ask the attorney whether the victim has been consulted to determine whether they want a publication ban, or at least, whether everything possible was done to contact the victim. This requirement is clearly stated in the bill. It gives a—

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

I don't want to be rude, but you know how it works. Time is running out.

That being the case, my understanding is that you agree on the idea that the Crown attorney should explain to victims that they can obtain a publication ban and how the process works, and also how to lift such a ban. All of that would be explained.

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

That's correct, Mr. Fortin.

I'd also like to point out that a number of provincial governments have already told me that they found the conflict of interest I mentioned problematic. They say that while it's possible to speak with victims, giving them legal advice on what can and cannot be done under the ban could lead to a conflict of interest.

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

I agree with you on legal advice, but I believe that explaining things to victims is the Crown attorney's role. I understand that you are more or less in agreement with this, because it's already in the bill.

Thank you, Minister.

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

You're welcome. Thanks.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Mr. Fortin, you have 25 seconds left.

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

You told me that I had two and a half minutes, and my time has run out. However, I could continue.