Justice Committee on Oct. 5th, 2023

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, everybody. We appreciate everyone's patience. I know we're starting an hour late, but I've adjusted accordingly.

Given our first panel, there's no need for presentations because they were here last time. I simply want to thank you for coming back.

I'll announce your names. Matthew Taylor and Joanna Wells, you were here last time.

For Mr. Fortin, we have one person who is here virtually. He has been tested and it works fine.

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

Thank you, Madam Chair.

I hope I'm not the only one who takes advantage of that.

[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.

[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?

[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]

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?

[The Chair, Liberal, Lena Metlege Diab]

Answer very quickly, please.

[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.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

I'll now move on to Mr. Mendicino.

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

Thanks very much, Madam Chair.

Thank you to the officials for appearing today.

I understand, Mr. Taylor, that it was your birthday yesterday.

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

It was the day before.

[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.

[Matthew Taylor]

Very briefly, the job of the Crown prosecutor is to present their case to the court concerning the guilt or innocence of somebody who's been charged with a crime. They represent the public interest. That encompasses, of course, the concerns of the victim, but it's not uniquely about the concerns of the victim.

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

To be clear, the Crown does not act as a lawyer to any individual party. They are principally there to represent the public interest, as you said. That is part of the reason why the minister expressed that concern.

Let's get to the solution. How do we ensure that victims get timely, accurate information when it comes to publication bans, in order to ensure their rights are being upheld?

[Matthew Taylor]

That's a very good question.

The bill introduced tried to do that. It acknowledged the increased requirement for all those in the criminal justice system to do more to support the interests and rights of victims. The Senate amended the bill and felt it could be stronger in that respect. It did that. There are more onerous obligations on both the court and prosecutors vis-à-vis victims and publication bans.

The concern the minister spoke to is a concern that is not uniquely his own. It is a concern that's been identified by provincial attorneys general in other jurisdictions, such as Ontario and Nova Scotia. The concern is that the provision could be interpreted in a way that suggests a prosecutor is providing legal advice to a victim about what they can do.

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

I know that we're on a very condensed timeline, but with regard to providing copies of publication bans to victims, if that's not something that's in the legislation, is there another way that we could provide support to victims?

Thanks very much.

[Matthew Taylor]

Yes, absolutely. I mean, victim support workers are able to provide information to victims, such as copies of publication bans.

[The Chair, Liberal, Lena Metlege Diab]

Thank you for that.

Next is Mr. Fortin.

[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?

[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.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Taylor and Mr. Fortin.

We will now move to Mr. Garrison.

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

Thanks very much, Madam Chair.

I just want to say, for the record, that I feel my privileges as a member of this committee were breached by the early start of the committee. We have an agreement, which has always stood in this committee, that the committee will not begin until 10 minutes after a recorded vote in the House. I was in the House voting, so I apologize if some of the things I'm about to ask have been covered.

I'm prepared to let it go at that.

Thank you for being here again. It's always good to see you.

In the session the other day, when the minister was here, I asked about the number of times publication bans are applied, and I really think that I wasn't particularly clear. I'm asking two questions there: How many times are publication bans used and how many times are publications automatically used in these cases? I was really trying to ask two things there. I know somewhat what your answer is, but I'd like to hear it.

[Matthew Taylor]

Thank you for the question.

As I think the minister articulated on Tuesday, we don't have national statistics on that information.

After the committee appearance on Tuesday, we went back and asked Statistics Canada what information they do collect. The reason we were given as to why they don't collect the information is that this is a procedural order that is made in the course of a trial. They don't have that data. That's not to say that data can't be collected; it's just that currently they don't collect it. We would have to work with the provinces and courthouses to be able to collect that information.

I expect that publication bans are imposed routinely every day across Canada, but what that number is, I don't know. They do collect information on the offence for breaches of publication bans. That is fairly limited. If you want that information, I can provide it, but I know time is short.

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

They do collect information on the number of sexual assault cases that are dealt with. If publication bans are routinely applied, which we've heard a number of times, then we should know roughly how many times they're used, if we know the number of sexual assault cases.

[Matthew Taylor]

Absolutely, they do collect information on the number of charges that are laid by police officers and the number of outcomes reported by courts. I think your question speaks to the capacity to collect that information, but they don't currently collect that information.