Evidence of meeting #76 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was bans.
A recording is available from Parliament.
4:45 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
They collect the information on the number of sexual assault cases that go to court—
4:45 p.m.
General Counsel and Director, Criminal Law Policy Section, Department of Justice
They do. They have a—
4:45 p.m.
General Counsel and Director, Criminal Law Policy Section, Department of Justice
They don't currently collect it. That's all I can provide.
4:45 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Okay. Let me move on from that.
I guess what we're establishing here is that we know anecdotally that these bans are routinely put in place, so victims of sexual assault are regularly subjected to the ban without being informed under the current regulations.
Are there any situations in which a ban on publication can be used under the current law to benefit the accused? Does this happen?
4:45 p.m.
General Counsel and Director, Criminal Law Policy Section, Department of Justice
I would answer it this way: Publication bans are imposed for the benefit of the victim or the witness, first and foremost. The interests of the accused are not taken into account in terms of determining whether the publication ban could be imposed.
Incidentally, the consequence of the publication ban imposed to protect a victim could also result in protecting the identity of the accused, if reporting on the identity of the accused would identify the victim.
4:45 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Then we shouldn't be seeing cases in court in which the defence counsel for the accused is allowed to make representations on the publication ban.
4:45 p.m.
General Counsel and Director, Criminal Law Policy Section, Department of Justice
That's correct. The accused doesn't have standing on these matters. As I said, a publication ban doesn't benefit them.
We do have some case law. I would just have to dig it up for you.
4:45 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
It's just that, again, anecdotally, we have sometimes heard about how defence attorneys have made presentations in court on publication bans and their lifting or their variance.
That's something that should not be happening. Is that what I'm hearing?
October 5th, 2023 / 4:45 p.m.
General Counsel and Director, Criminal Law Policy Section, Department of Justice
That's correct. The law is clear that a publication ban is in place to protect the identity of a victim or witness, not to benefit the accused.
4:45 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Would the text of Bill S-12 do anything to clarify that situation?
4:45 p.m.
General Counsel and Director, Criminal Law Policy Section, Department of Justice
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.
4:45 p.m.
NDP
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?
4:45 p.m.
General Counsel and Director, Criminal Law Policy Section, Department of Justice
There are a number of different places in the bill that speak to the obligations of the court and the prosecutor to engage with the victim. There is language that speaks to the obligation to inform a victim or witness of their right to apply to revoke or vary a publication ban.
4:50 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
I know I'm perilously close to the end. I have just one more brief question.
In the current legislation, are there any restrictions on varying or lifting publication bans?
4:50 p.m.
General Counsel and Director, Criminal Law Policy Section, Department of Justice
The bill seeks to codify a process for revocation or modification. Today, it is a common law process. It applies where it can be shown that there is a material change in the circumstances.
The courts have acknowledged that if the recipient of the publication ban no longer wishes to have the publication ban, that constitutes a material change in circumstances. The bill would codify a practice that would require the publication ban to be revoked or modified at the request of the victim or the witness, provided it doesn't impact on the privacy interests of another person protected by a publication ban.
4:50 p.m.
Liberal
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.
4:50 p.m.
Liberal
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?
4:50 p.m.
Some hon. members
Agreed.
4:50 p.m.
Liberal
The Chair Liberal Lena Metlege Diab
Thank you very much.
We now have three witnesses.
Yes, Mr. Garrison.
4:50 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Madam Chair, on the calendar circulated, on the 19th it says that there's a meeting. What you're saying, just so I'm clear, is that the testimony will conclude on the 17th.
4:50 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
My point, then, is that the testimony will conclude after the deadline to submit amendments, and that's problematic.
