Justice Committee on Oct. 17th, 2023

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

I take your point about there being a mens rea, that there has to be a deliberate violation, but can you say a little about where those who are subject to the ban have gotten into trouble? What are they trying to accomplish when they're talking to other people or informing other people about their case?

[Robin Parker]

I think there's a bit of a misunderstanding—and I think C.L.'s prosecution, unfortunately, increased that—about what actually constitutes breaching the publication ban. People are often given advice, because of her case, not to speak to anyone about it.

For example, after our testimony two weeks ago, we were here with survivors. There was a woman here who was trying to get her publication ban lifted. We took a photo of all of us with her, and then we took a photo of all of us without her so that the My Voice, My Choice people could use the photo on social media. She was worried that would breach the publication ban, so it's quite broad.

People want to speak, write, speak in private groups, speak to counsellors—these are the things that are worrying them. Whether or not those are violations, advice would have to be given on a case-by-case basis.

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

Could we amend Bill S-12 to maybe put some of that advice into Bill S-12 by saying that, in the case of talking to counsellors or medical professionals or trusted persons—some kind of list of people—it's definitely not a breach?

[Robin Parker]

Yes, you could. There is a section in here that speaks to the intent and about prosecuting the complainant and what would be required to do so, which I think just restates the law as it presently exists. However, you could also carve out exceptions and circumstances under which someone should never be prosecuted.

You could carve out an exception to never prosecute a complainant at all. Some would say that might go too far because there may be situations where there are multiple complainants and the public good would require that someone have a ban when they might personally not have wanted one.

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

I think that's an important point you raise. There are often multiple victims involved in a case, and there may be different opinions about publication bans.

[Robin Parker]

Yes, exactly.

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

In my view.... I think the suggestion, which came from My Voice, My Choice, was that we might be more specific in the law about some of those circumstances in which it's never going to be prosecuted.

One of the other things I know, certainly from people I've met, constituents who have been subject to bans, has been the public safety aspect from their point of view. One of the reasons they didn't like the publication ban and one of the reasons they wanted it lifted was that they wanted people to know that there was a predator, and the publication ban on their name inadvertently protected the perpetrator.

[Robin Parker]

Yes, exactly. That's, of course, a benefit that the accused receives, in the context of sexual assault cases, that is unique in the Criminal Code, so survivors who have the ban lifted in those circumstances are very brave.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Thank you very much to the panellists.

Professor, you can go to your class. We very much appreciate your being here with us today virtually. Thank you very much for coming.

That concludes the panel. We will now suspend for a minute because I believe the panellists who are with us for the next round are here with us in person.

Please come on up.

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting back to order.

I'd like to welcome our two witnesses Benjamin Roebuck, federal ombudsperson for victims of crime and, from the Women's Legal Education and Action Fund, Pam Hrick, executive director and general counsel.

Welcome to both of you. You have five minutes each.

When you have 30 seconds, I will do this. When there is absolutely no time, I will go like this. I will do my best.

The floor is yours. I will begin with Ms. Hrick.

[Pam Hrick, Executive Director and General Counsel, Women's Legal Education and Action Fund]

Thank you, Madam Chair.

Good afternoon. As has been mentioned, my name is Pam Hrick. I'm the executive director and general counsel of the Women's Legal Education and Action Fund, or LEAF. We use litigation, law reform and public legal education to advance the equality of women, girls, trans and non-binary people. We've been at this since 1985.

I'd like to thank you for inviting me here to speak with you today about Bill S-12. I was pleased to also have the opportunity to appear before the Senate committee studying this bill earlier this year. I am going to focus my remarks today as I did before the Senate committee on the publication ban portion of Bill S-12.

We were very encouraged to see the willingness of parliamentarians to improve how publication bans are imposed, varied and revoked. This work has been driven to the forefront of public attention by sexual assault survivors, including those involved with My Voice, My Choice, with support from feminist lawyers, advocates and organizations like LEAF who echo the calls for change to centre survivor choice.

LEAF was very glad to see the Senate amend the legislation in response to concerns that were raised at committee. We had several overarching recommendations for amendments to strengthen the bill in the Senate. These included, first, ensuring victims are not criminalized for failing to comply with a publication ban on their own identity; second, ensuring that people whose identities are protected by a publication ban can still disclose their identity in contexts such as with a therapist or a support group; and third, clarifying and simplifying the process for revoking or varying a publication ban.

These recommendations were put forward by a coalition of organizations and individuals with deep expertise on sexual violence and the legal system. They included LEAF, the National Association of Women and the Law, the Canadian Association of Elizabeth Fry Societies, the Ending Violence Association of Canada, Legal Advocates Against Sexual Violence, Possibility Seeds, Megan Stephens, Pamela Cross and Robin Parker.

Of course, I'm here today speaking for LEAF. We would urge you, by and large, to maintain the amendments to the legislation that were adopted by the Senate, which were responsive to our recommendations.

One modification we would encourage you to consider at this stage was spoken to by Ms. Stephens on October 5, and it was just spoken to by Ms. Parker today. That concerns the requirements the bill places on prosecutors. As you've heard, the current version of the bill requires prosecutors to inform complainants of the existence of a publication ban and their right to apply to revoke or vary it. These are practical and important information requirements that should be maintained. However, the bill goes further and requires prosecutors to share information about the publication ban's effects, and when and how the complainant can disclose information without violating the order. That verges on putting the prosecutor in a position of giving legal advice.

I agree with Ms. Stephens' and Ms. Parker's submissions that the bill should impose a more narrow requirement to inform a complainant of the ban's existence, that they can seek to have it varied or revoked, and that they are also entitled to get independent legal advice to make an informed decision about whether they wish to do so.

As I said before the Senate standing committee, we need investments in independent legal advice and education to ensure that survivors fully understand what a publication ban does, how it can be imposed and how it can be removed. We need these investments to ensure that survivors can make informed choices about what's best for them in their circumstances.

We've heard loud and clear from survivors that they want the ability to speak about their own experiences—or at least some of them do. We also know that some survivors wish to avail themselves of the privacy protections provided by a publication ban. As one expert, Anu Dugal of the Canadian Women's Foundation, said earlier this year, publication bans can serve as “one layer of support and protection for racialized women in a system that does nothing to actually support them or protect them—and in fact goes out of its way to blame them”.

I want to highlight that, unfortunately, it seems like the committee may be moving into clause-by-clause without having heard directly from any racialized survivors or legal experts concerning the impact of the proposed amendments.

I'll conclude though by stressing that both choices are valid—to have a publication ban in place or not. The important thing for this committee to keep in mind is that amendments related to publication bans must seek to give effect to survivors' choices and make it as easy as possible to exercise agency in making those choices.

Thank you, and I look forward to your questions.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Mr. Roebuck.

[Dr. Benjamin Roebuck, Federal Ombudsperson for Victims of Crime, Office of the Federal Ombudsperson for Victims of Crime]

Thank you. It's nice to see you again.

Madam Chair and members of the committee, thank you for inviting me to speak on Bill S‑12, an act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.

I acknowledge that we are on the traditional unceded, unsurrendered territory of the Anishinabe Algonquin nation. I honour the leadership, strength and wisdom of indigenous peoples, and I accept personal responsibility for pursuing justice and reconciliation.

The Office of the Federal Ombudsperson for Victims of Crime is an independent federal agency at arm's length from Justice Canada. We provide information to the public on victims' rights, review complaints from victims about federal agencies and advise on criminal justice legislation and policy. Our recommendations are informed by conversations with survivors and stakeholders across the country and around the world, and by our indigenous, academic and service provider advisory circles.

The volume of inquiries and complaints to our office continues to grow. We project a 128% increase in files opened this year versus 2017.

Our office has also prepared a comprehensive response to this committee's study on improving support for victims of crime, which we will submit to you shortly.

To the courageous survivors who have advocated for Bill S-12, thank you. I also recognize survivors who continue to be silenced by publication bans, and I have heard how painful it is to be excluded from this process—not being allowed to speak to Parliament with your own voices and names.

One survivor provided consent for me to share their silence for 30 seconds. Please join them in silence.

[A moment of silence observed]

In June, I appeared before the Senate standing committee to discuss Bill S-12. I am pleased to see how the senators incorporated feedback from survivors and other stakeholders.

I continue to support recommendations from My Voice, My Choice and other survivors who have contacted our office, including on better education for prosecutors and judges on how trauma affects memory and information processing; how important autonomy over identity is for recovery; collecting reliable court data on publication bans; informing sexual assault survivors about their rights, respecting their choices and offering independent legal assistance, where available; treating Criminal Code provisions for victims of crime with the same weight as measures for the accused; and better protecting the therapeutic records of sexual assault survivors who need unconditional safety to externalize and process the violence imposed on their bodies.

Some of these recommendations are addressed in the bill, while others will require more work. We've heard about numerous rights violations, barriers and contradictions in how the criminal justice system responds to sexual violence. Our office is in the early stages of planning a systematic investigation into these challenges in order to propose more comprehensive and trauma-informed remedies to Parliament.

In a recent discussion with Crown prosecutors, we heard that the requirement to consult on publication bans in Bill S-12 occurs prior to their regular first contact with complainants. This raises the concern that the implementation of Bill S-12 could lead to rushed decisions on publication bans. We've also heard concerns that some survivors may choose to reject or lift a publication ban without understanding potentially long-term consequences.

I understand the need to pass Bill S-12 quickly, so I will limit my recommendations to a few key areas that could easily be written into the legislation or included in implementation.

Number one is informed consent. Decisions about publication bans have significant consequences for survivors. The pros and cons should be clearly presented with supporting resources that provide information in plain, easy-to-understand language. Trauma can make it difficult to process and recall information, so having something to review can help with decision-making.

We propose an addition under “Duty to Inform" in proposed subsections 486.4(3.2) and 486.5(8.2) requiring the prosecutor to inform the judge or justice that they have provided a resource on publication bans to explain the law, safety considerations and how to have a ban varied or revoked.

Finally, on victim-centred information.... I can summarize it to shorten my time here.

It's wonderful that we've included a measure for victims of crime to finally be asked whether they'd like to receive information about the sentence and its administration. That's very important, but it still remains offender-centred in the way it's presented. It's not clear that, if a victim doesn't check that box, they will not be told about a parole hearing or about when the person who harmed them has been released. There are consequences to that as well. We need to improve some of those measures.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Colleagues, we will do one round of six minutes each. I won't shorten that. We have enough time for that.

I will start with Mr. Van Popta.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you, Madam Chair.

Thank you to the witnesses for being here.

You've given very important evidence about one aspect of Bill S-12. Your focus has been on publication bans, which is very important legislation, and we are generally supportive of it.

However, I just wanted to get on the record how profoundly disappointed I am that the government side of the House has delayed this legislation and is now rushing it through. We have a deadline of October 28 in response to a Supreme Court of Canada decision that said that the sex offender registry was unconstitutional, so Bill S-12 intends to fix that.

Now, on top of that, we also have this second add-on of the publication ban. Listening to your evidence today, Ms. Hrick, you say that there are a lot of voices that haven't been heard, and here we are in a big rush with October 28 to get this whole bill passed. I don't feel that we're giving just time to this very important piece of legislation.

That said—that's off my chest now—I want to thank you for your testimony, but we've heard from other witnesses who have said that there should be a simplified process for revoking the publication ban in simple cases. Perhaps you could tell us what, in your mind, constitutes a simple case.

[Pam Hrick]

I'd say perhaps a case where there is a very narrow scope of individuals who are covered by the publication ban, such as a single individual, a single victim or complainant, where nobody else's interests are impacted. It juxtaposes, of course, with cases where there are multiple complainants, where there are different privacy interests that may be competing or where you have different desires among those individuals to have the privacy protections of a publication ban and those who do not want those privacy protections. I think that's the kind of case that might be a little bit simpler.

I do think the amendments that have been proposed and adopted by the Senate to simplify the process are a great improvement over what we have now and a great improvement over what Bill S-12 initially proposed.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you.

There are often cases where there's more than one victim. Of course, there might be disagreement among the victims as to whether the publication ban is important or harmful. A case like that would be more complex.

What would be the process, then, for revoking the publication ban for one victim but not the others?

[Pam Hrick]

I'd have to give you a blanket answer, and I think the legislation provides for a process that allows those voices to be heard and for courts to consider whether a tailoring of a publication ban could address those various privacy interests. I think it would be a case-by-case determination, and Bill S-12 does give tools to the court to be able to make that kind of decision, one that hopefully, to the greatest extent possible, allows for every victim's or complainant's wishes to be taken into consideration and to ultimately be respected.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Does the court have the resources to be able to do this in an effective manner?

[Pam Hrick]

I think the courts are under-resourced, as a blanket statement.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

That's fair enough. I would agree with you, certainly from the evidence that we've received in this study and others.

I have a question about Crown prosecutors being given this additional task of having to deal with victims and publication bans. I don't know which one of you said it, but I think you were indicating that there might be a conflict of interest for the Crown prosecutor to have to give what effectively becomes legal advice. Perhaps you could expand on that.

Maybe you, Mr. Roebuck, could talk about that and tell us what needs to be amended in the draft legislation.

[Dr. Benjamin Roebuck]

I have sympathy for that conflict of interest that I've been hearing about. I think independent legal advice is one of the most important components for survivors. It's a complaint that we have—that even though programs providing independent legal advice exist, nobody has the responsibility to inform victims when they report a sexual assault that they can access those programs. It's a gap that we don't tell victims about their rights up front, so they miss out on exercising them.

For multiple survivors, I don't understand why somebody, in cases with multiple publication bans, would need to retain theirs to respect someone else's. I think, in cases with multiple bans, that somebody should be able to have their own removed and still respect any bans that remain in effect. I think that's a clear distinction. Otherwise, we have a system where people are still trapped by these silencing measures, and I think that needs to change.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Ms. Dhillon.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you, Chair.

Thank you to our witnesses for being here.

I'll start with Madam Hrick.

We've talked with very good reason, under Bill S-12, about victims who wish to lift their publication bans. I'm going to ask my question in two parts, if you can answer them, please.

I want to ask you about the victims who want a publication ban to protect their privacy. Are there parts of Bill S-12 that could create barriers or confusion for people who do want a publication ban? How can we balance the interests of both?

[Pam Hrick]

I think that Bill S-12 right now centres that issue in ensuring that survivors can exercise choice and agency in determining what choice is best for them in the circumstances.

Bill S-12 allows for publication bans to be put in place right off the bat, which, as acknowledged and heard at this committee, can feel like a suffocating or retraumatizing experience for some survivors. Putting in those mechanisms to easily allow for the ban to be lifted, varied or revoked is an important measure to give effect to those survivors' choices.

Having the discretion or the ability present in the amendments to Bill S-12 to allow for that protection to exist and persist for survivors who wish to avail themselves of the privacy protections of the ban is also something that this bill, as drafted currently, achieves.

I want to also re-emphasize the court resourcing point. It's not just that courts are under-resourced. It is that resources need to be directed in a way that will allow survivors to be supported in the process if they choose to report, and will allow them to make choices about whether to report in the first place.

I could go on and take up most of the committee's time talking about ILA programs that exist for survivors, for example, in Ontario, to help them make those choices and about the need to expand those across the country and properly fund them.