Justice Committee on Oct. 5th, 2023

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

Well, I don't wish to cause an inordinate delay here, but I think that at the very least, at the end of the day that day, we would allow, if something comes up at that meeting, for people to give notice of their intent to do amendments. I just think it's not fair to witnesses who appear on that day not to have their testimony affect what we might be doing in amendments.

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

I agree.

[The Chair, Liberal, Lena Metlege Diab]

The clerk is telling me that they require 48-hour notice but there's always a possibility to bring amendments on the day as well.

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

Thank you. That was the assurance I was seeking.

[The Chair, Liberal, Lena Metlege Diab]

Thank you. That's perfect. Obviously, you would send them probably ahead of time.

Go ahead, Mr. Brock.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Madam Chair.

Just for clarification, then, for October 24 and 26 on this calendar, are we suggesting that we'll move into another study, the next study?

[The Chair, Liberal, Lena Metlege Diab]

What we will probably do is have a steering committee meeting—and we'll decide that on the 17th, because we haven't gone beyond Bill S-12 at the moment—so that we can decide on what needs to happen.

Are you okay with that?

[Larry Brock, Conservative, Brantford—Brant, ON]

Yes. Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Welcome to our witnesses.

My apologies, today was not a normal day in terms of timing. We appreciate all three of you being here. I will introduce all three of you. You were with us before, and we very much appreciate it. I concur wholeheartedly with Mr. Mendicino's remarks earlier. We very much appreciate all the work that you have done with the study.

With us we have Megan Stephens, criminal and constitutional lawyer at Megan Stephens Law; Morrell Andrews, member of My Voice, My Choice; and Suzanne Zaccour, director of legal affairs, National Association of Women and the Law.

I'm going to leave it up to you. I know you understand the time constraints we're under.

Mr. Garrison, apologies, but I had five people come to me before we started and say we need to conclude at 5:30 today. We shrank it as much as we could.

I'm going to leave it up to you. I know you all have prepared statements. Take whatever time you need, up to five minutes, and if you take less, that's quite all right as well. Then we'll move into questioning. Thank you very much.

I will ask Ms. Stephens to please commence.

[Megan Stephens, Criminal and Constitutional Lawyer, Megan Stephens Law, As an Individual]

Thank you so much.

Good afternoon. Thank you for having me here today.

In my limited time, I want to focus on the treatment of publication bans in this bill.

My view, in relation to publication bans, has been informed by my work over the last two decades in criminal and constitutional law. I was a Crown attorney for more than 10 years. I was then the executive director and general counsel at LEAF, and, in January 2021, I launched my own practice to assist women and gender-diverse people in their encounters with the criminal justice system.

I now routinely represent complainants in sexual assault proceedings, including in relation to the lifting of publication bans—often on a pro bono basis—and also act for criminal defendants, predominately in the appellate context.

Through that work, I have seen first-hand that our legal system really struggles to respond in a trauma-informed way to prosecutions of sexual offences. It's no surprise to me that sexual assault remains among the most highly gendered and under-reported of crimes.

When publication bans were first introduced some decades ago, they were meant to encourage the reporting of sexual offences. Knowing that a publication ban is available does help some complainants come forward to report.

However, not every complainant wants a publication ban. Many find comfort in being able to share their experiences publicly with others. For those complainants, a publication ban that impedes their ability to do that can be retraumatizing—all the more so when those bans are imposed without their knowledge or agreement, or when they realize that the ban could actually lead to their criminalization.

With that in mind, I welcome the spirit underlying the proposed changes that would follow from enacting this bill.

Complainants need more agency when it comes to the imposition of publication bans, and they need more information to exercise that agency. If a publication ban has been imposed but a complainant doesn't want it, varying or revoking it needs to be easy. Perhaps most importantly, a complainant should never be criminalized for failing to comply with a publication ban on their own identity.

I think Bill S-12, as passed by the Senate in June, appropriately targets most of these concerns. It's much improved, but I want to talk about one key problem that I think remains today, and I heard some of this coming out in the questions for the Justice officials.

Bill S-12 would amend the code to impose a duty on prosecutors to inform the judge, after a publication ban has been ordered, that they have taken steps to inform the complainant or witness of a number of key things: currently, the existence of the order; its effects and the circumstances in which they may disclose information without being in non-compliance of the order; determining whether the person wishes to be the subject of the order; and informing them of their right to apply to revoke or vary the order.

I agree 100% that a prosecutor is well placed to inform a complainant about two key facts: that the publication ban has been imposed and that they have the right to apply to revoke or vary that order. That information isn't currently being shared routinely with complainants, even though a publication ban is routinely being imposed on almost every single sexual assault case that happens in this country. They need that information.

I'm concerned that the current language goes beyond a duty to inform by blurring the lines between a discussion about factual issues and an update and a discussion that requires them to dispense legal advice. The prosecutor is not the complainant’s lawyer, and they are not in a position to give a complainant independent legal advice. I’ve worn both hats, and one is not the same as the other.

Requiring a prosecutor to explain the effects of the ban or the circumstances in which they can speak without risking liability is crossing the border into legal advice. A complainant may have questions before deciding whether they want the ban to remain in place. They really need independent legal advice to weigh those competing considerations. They can't get it from a prosecutor. A discussion like that would be risky, not just for prosecutors but also for complainants. It could trigger disclosure obligations on the part of the prosecutor, and it could put complainants and prosecutors into a potential conflict of interest, since choices a complainant might make could affect the strength of the prosecution.

The bill really needs to be amended to impose a more limited duty to inform, which would require prosecutors to inform complainants that the ban exists, that it can be varied or revoked, and that they are entitled to get independent legal advice to make an informed decision about whether they want it to continue.

That brings me to my final point: You must accompany this bill with meaningful funding to improve access to free independent legal advice for complainants and better resourcing of organizations that support them. Complainants who can access independent legal advice from trauma-informed lawyers and community supports are much better equipped to manage the stresses of criminal proceedings.

Thank you. I look forward to your questions.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much. That was exactly five minutes.

Next we have Ms. Andrews, please.

[Morrell Andrews, Member, My Voice, My Choice]

Thank you.

I would like to thank the Algonquin Anishinabe people, whose land we gather upon today. I will once again encourage this committee to integrate the calls to action from the Truth and Reconciliation Commission into your report.

I'll be quick. I'll skip over some things, but I want to make it clear that I do not speak for all victims and cannot come close to encompassing the lived perspectives of those who face a number of barriers in accessing the system and accountability for the crimes committed against them.

I think the Senate did good work on Bill S-12, but we're here to ask you to be even more ambitious. From our perspective, a better bill would feature amendments that do a few more things, like ensuring that prosecutors are directed to immediately inform the victim of their right to request a publication ban before it is ordered. Right now, the bill talks about judges doing that. It's not realistic. It doesn't happen in real life. Someone needs to tell victims before the ban has been put on their identities that they have the right.

You should clarify, in section 486.4, that publication bans are available for witnesses under the age of 18 and victims of sexual offences, because there's still confusion about this in the system.

The bill should also require prosecutors to act in accordance with the wishes of the victim. We like to use the word “consent”, but for some people that might not make sense in the context of the Criminal Code. The wishes of the victim should matter. You need to make sure that this is in the bill and that there aren't justice system actors like judges or Crowns who are acting without the consent or the wishes of the victim being taken into account.

We want to make sure that publication bans are not put on the identities of victims who have made it clear that they do not wish to be subjected to such an order.

We want to make sure that victims are provided a copy of their publication ban. Victim services simply do not give us that information. They don't know about publication bans. They are not equipped to do so. It doesn't happen in real life.

I also want to make sure that the way applications are dealt with for sexual offence victims is separated from section 486.5 of the Criminal Code. Right now, Bill S-12 lumps discretionary bans for any justice system participant with this type of publication ban for sexual offence victims. It doesn't make sense to have them combined. You should separate them and make it clear that there are only limited factors that a judge can consider when someone comes to them and asks them to remove their publication ban if it has to go to a hearing. Ideally, victims should just be allowed to have their publication bans lifted without having to go to a hearing.

Finally, we want to make sure that you expand the limitations section to ensure that trusted people, including professionals who provide support to victims, are not criminalized for communicating. Right now, the bill carves out a limitation for victims sharing their own information, but people who have to converse back and forth with victims when they need support should not be criminalized.

We want to make sure that there are no more egregious delays for victims removing their bans, like what happened to Patty or Maarika. We don't want any more victims having to hunt for and go to the court to try to find their publication ban orders, like what happened to “Deborah Lyn” this very week. We want to make sure that there are no more defence attorneys who are reintroducing publication bans on the names of victims who have already had their publication bans removed, like what happened to “Cassandra” last month, and we want to make sure that Crowns are no longer acting on assumptions without involving victims, like effectively every single person we have been connected to.

These suggestions are crowdsourced. They are based on the lived experience of victims. We have done our very best to consult on these recommendations very widely, but it is literally impossible to capture the nuance of every individual's issues, perspectives and interactions with the legal system.

We've done everything humanly possible to give you amendments on paper and to help you in this process, but the reality is that this should not be our responsibility as victims. We are not lawyers, but we are trying to do our very best to help you. Inevitably, some people will say that it's not good enough, but we're here now and we're doing what we can.

Quite honestly, the last year and this process have left so many of us feeling retraumatized, depleted and extremely tired. We have been placed in the very unenviable position of wondering if tweaking on the margins of the current Criminal Code will be good enough.

For that reason, these recommendations are not a panacea. This Parliament will still be confronted with the fact and the reality that complainants face a shameful amount of barriers throughout the continuum of seeking help and accountability, and long after.

Your police still don't believe us. Your Crown attorneys are not trauma-informed. Your judges don't understand how to properly apply the law, at our expense. You have not invested sufficiently in the resources outside of the system that can be there to provide important support that is culturally appropriate for victims of all different kinds of backgrounds. After Bill S-12 is complete, you will still have work to do, including educating Crown attorneys and judges, implementing guides for the provinces and territories, reviewing legislation to make sure you get it right and producing accessible information for victims, who deserve to know what is happening to them in the system.

The people behind My Voice, My Choice have done everything expected of us—and far beyond that, to be honest. I know you are facing tough deadlines and I know this is not the ideal way to write a bill, but here we are, and this is what we have. I want you to continue to consider our amendments, as many of you have, and I want to know that they matter. I want to know that the stories we've shared with you matter, so please do the honourable work and collaboration across party lines and take this seriously. If you do and if you amend the law so it's at least a bit better, we can finally rest and take some time to do the healing that a lot of us still need to do.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Ms. Andrews.

The clerk tells me you've sent something in just recently. We will get it translated and circulated to everyone on the committee.

Ms. Zaccour, go ahead.

[Suzanne Zaccour, Director of Legal Affairs, National Association of Women and the Law]

I'll be brief because I think everything has been said.

My name is Suzanne Zaccour, and I'm the Director of Legal Affairs for the National Association of Women and the Law.

NAWL is a not-for-profit organization that works to advance women's rights in Canada, including in the legislative process.

I'm always happy to come here and talk to you about legal issues that are gendered and that affect women in Canada.

We worked with other feminist lawyers and organizations to submit a brief when Bill S‑12 was in the Senate. We collaborated to highlight three important objectives.

We highlighted the need to ensure that victims are not criminalized for failing to comply with a publication ban. We highlighted the need to clarify and simplify the process for revoking or varying a publication ban. Quite frankly, it needs to be much clearer. These are not necessarily lawyers who are engaging with this process. We also highlighted the need to ensure that victims are adequately informed throughout the process.

Our position is that the Senate amendments are positive and have brought about a lot of progress in this bill to fulfill these three objectives.

I will call to your attention a minor detail. It's the language about a person being “subject to the order” rather than “subject of the order” in the “Limitation” section of the bill. I'm not so concerned, since the French version is correct, but we know how difficult this process is, so perhaps we can avoid litigation or having to do complex interpretation by just clarifying that the limitation applies to people who are “subject of the order”, whose identity is protected by the order, rather than to those who are “subject to the order”, which is everybody, because everyone needs to respect a publication ban.

I have more to say, but I know we're pressed for time, so I'm going to stop here. We'll be happy to answer questions.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

If it's okay with everyone, for the first round—maybe the only round—we will go with four minutes each. Does that work for all of you?

[Some hon. members]

Agreed.

[The Chair, Liberal, Lena Metlege Diab]

Okay.

Mr. Brock, go ahead.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you so much, ladies, for your sage advice and information, and the passion with which you bring such intelligence to this study.

It is extremely disappointing to me, as a parliamentarian, that we're trying to shove through the passage of this bill literally at the eleventh hour, when the government had an entire year to get this right. We have 13 days to get this passed. We have one more day of witnesses. It's unfortunate that we are cutting short a very important study in this fashion.

Ms. Andrews, you've brought nothing but courage to every committee you've appeared at where I've had the privilege of hearing from you and questioning you. You bring the truth. You bring strength. I have nothing but high praise for the resilience you have shown, not only as a survivor but also now as an advocate for change. Every parliamentarian should be listening to your words, because this is an opportunity for us to get this right.

I have very limited time. You mentioned a number of amendments. You talked about amendments you spoke to at the Senate stage. What is the most important amendment you think we should seriously give consideration to in order to strengthen this bill?

[Morrell Andrews]

Thank you.

It's hard to choose just one, quite honestly. I'll go really quickly. You all have the package I sent around, and I think there are really four things that you need to lend your minds to.

First, make sure that prosecutors inform victims and act according to their wishes.

Second, allow for the application process to be clarified. It's really important that you get that right and that judges are given as narrow a scope as possible for potentially denying a victim their freedom of expression. Everyone who wants to speak should be able to speak, and there should no longer be the ability for judges to deny victims the ability to actually talk about their experience.

Those are the two, off the top, that I think are really the most important, because if you get consent right, people can make a decision before they have a publication ban put on their name. If they do have a publication ban put on their name and you get the application to remove the publication ban correct, you won't have addressed every problem but you'll have done good work.

[Larry Brock, Conservative, Brantford—Brant, ON]

You identified in your opening statement an issue that needs to be fleshed out a little bit. That was in response to the question from my colleague Mr. Garrison to the officials about how many times these publication bans are granted.

As a former Crown attorney, I can tell you—and I can speak only on behalf of the Province of Ontario—that every single time I was in bail court or in remand court for the first time dealing with a sexual offender on behalf of an adult victim or a child victim, the policy was to ask for those publication bans.

I see Ms. Stephens shaking her head, because she's a former colleague of mine.

It's something that federally we cannot work on; provincially we can. We need to broker a relationship between the feds and the provinces to ensure that best practices are adopted across this country so that there is uniformity, at the very earliest stage, in the use of all the tools we have as prosecutors. Getting that input from the complainant very early is key.

I thank you for raising that as an issue.

That's probably my time. Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Mr. Brock.

Ms. Brière, you have the floor.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madam Chair.

Good afternoon, everyone.

I just want to say that I admire you, Morrell—we met at a previous meeting—and all these women for coming out of the shadows.

We know there are connections between publication bans and many other elements that are essential to a more survivor-centred, victim-centred process. One of those elements may be free, independent legal services. You mentioned education for Crown lawyers and judges.

How can that kind of help be better integrated into the process?

[Morrell Andrews]

I actually think Megan would be really well suited. I know she's done a lot of work with judges on education, and I would pass it over and defer to her as an expert.

[Megan Stephens]

I do think there needs to be more thought given to the role of independent counsel. The role of complainant counsel is a relatively new and unusual role in the criminal justice system. Typically, we think of prosecutor and defence counsel. There is a huge need to provide, at the very beginning of this stage of the process, independent legal advice to people who have survived sexual violence. I come across a lot of clients who, if they had known what the process would be like, might not have chosen to come forward and report.

I know that publication bans are intended to encourage reporting, but I think that the most important thing is agency. They've experienced something where they had no control. They come forward and report because they're told that's what they should do, and they end up in a process where they lose complete control of everything again. They don't get a voice; they don't get a say. They don't get informed about what's happening, even by well-meaning prosecutors and victim services; everyone is so busy.

I think that, at the very outset, they need to be able to access independent legal advice. I'm in Ontario, so I only know about the program that exists in Ontario. There is a program that started as a pilot project that the provincial government rolled out across the province. Every victim of sexual violence in the province of Ontario is, in theory, entitled to access four hours of independent legal advice. If you apply for a voucher, you can get it. There are 26 lawyers, maybe 27 lawyers, in the whole province who are on that list right now. I'm not one of them; I can't get on the list because the list was put together in 2016, when I was a Crown attorney. People are told that they have access to something, but they can't even access it. That's just in Ontario.

I do think there's a real need to have people help guide you through the system to explain what the process will be—whether or not that's in relation to publication bans—and to be a conduit of information to the Crown, because Crown attorneys don't want to talk to you and turn themselves into witnesses or potentially trigger disclosure obligations. That's just one way of thinking about it.

I do think that further training for everyone in the system, including Crown attorneys and judges as well, about what it actually means to be trauma-informed is an important thing.

There has been training that has been implemented for federal judges, and when people are applying, they have to agree to that training. However, the majority of cases actually proceed through provincial courts. That's outside your jurisdiction, but it is a problem in terms of making sure that the training hits at all the right points in the system.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Mr. Fortin, go ahead.