Evidence of meeting #77 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.
4:35 p.m.
Liberal
4:35 p.m.
Assistant Professor, Faculty of Law, Thompson Rivers University, As an Individual
I would note that I have a copy of Professor Benedet's paper on my computer right now. It's on page 437 of her 2012 Queen's Law Journal paper where she has set out a list, so maybe that will be of help.
4:35 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Okay. We're going to get a copy of page 437, and anything else you might like to add, Dr. Benedet.
Ms. Parker, how do you feel about that?
4:35 p.m.
Counsel, As an Individual
I would commend her entire paper to you, not just that singular page.
4:35 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
That's a couple of pretty strong endorsements, Dr. Benedet.
Very quickly, as I don't have much time left, you talked about the Crown's ability to speak with individuals about the ban. How would you change the bill that's before us to ensure that your concerns are addressed?
4:35 p.m.
Counsel, As an Individual
I guess it depends on how far you're going when you do your line-by-line amendments. We have all spoken about the need for robust or at least funded legal counsel for complainants.
Right now, people like Ms. Stephens and I are volunteers. We're both sole practitioners, so our ability to serve in that capacity is quite limited for very practical reasons.
If you want me to specifically go to a line-by-line analysis, perhaps I could send you a note as well.
4:35 p.m.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
If you do have a specific thought, yes, please, share it.
4:35 p.m.
Liberal
The Chair Liberal Lena Metlege Diab
For all witnesses, please feel free to send us anything that we don't have time to go over today. That would be very appreciated, but the sooner the better.
4:40 p.m.
Liberal
The Chair Liberal Lena Metlege Diab
That's terrific.
Mr. Fortin, you have the floor for six minutes.
4:40 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam Chair.
Dr. Benedet, Ms. Parker and Dr. Fehr, good afternoon. Your participation in this discussion is important. We're proud and fortunate to benefit from your insights.
I'm going to reiterate what the chair just said, that we'd be delighted to receive your notes. In particular, page 473 of your document, Dr. Benedet, seems to be a page worth reading, which I'd be happy to do. The same goes for you, Ms. Parker: You can send us the documents that you think will be useful.
I have questions about certain aspects of the bill, but I'd like to stick—at least for now—to the issue of publication bans and the potential conflict of interest that could arise for the Crown prosecutor when speaking to victims. You mentioned this, but I'm still puzzled. I wonder how we can articulate something useful and effective other than asking the prosecutor to explain things to the victims.
Ms. Parker, you mentioned the possibility of mandating private sector lawyers to offer advice to victims. Yes, it's a possibility, but is it the best way to go about it? I don't know. There are situations where it could become complex.
Is there anything else either of you would like to say about this? Is it the judge, the Crown prosecutor or an independent prosecutor who should be giving explanations to victims? If it's the latter, should there always be an independent prosecutor in trials involving publication bans?
I'd like to hear what you have to say first, Ms. Parker.
4:40 p.m.
Counsel, As an Individual
I will answer you in English if you'll allow. Thank you.
I'm just going to turn to proposed subsection 486.4(3.2) in the legislation, and, just in the very simplest of ways, eliminate one problem but not solve the other.
You can simply delete the section that says the prosecutor has to advise of the ban's “effects and the circumstances in which they may disclose information that is subject to the order”. That would remove the giving of legal advice by the prosecutor, which we're saying is a serious problem.
In solving that, though, as we've said, somebody needs to explain it. The judge isn't really in a position to explain the effects because, of course, any good giving of legal advice involves receiving information. It involves a conversation that's privileged and confidential, so that someone can understand the scope of what they're being advised.
Independent legal advice is what's needed here. We even have cases where we've applied to lift publication bans, where we have tried to limit our involvement and asked the prosecutors to do this. Then the prosecutors come back to the complainant and say, “We can't agree to do it unless the complainant has independent legal advice.”
We say, “All right, then appoint me.” I want to say to the judge, “Then you need to appoint me as counsel.” The prosecutor can bring an application to do that. We do that in other areas of the code. Perhaps looking at that and importing that sort of concept from sections 276 and 278 into this area would be good, although you have to be careful about standing. That opens up a whole other mare's nest.
I can give you some answers. This duty to inform of the existence of the publication ban could also be equally imposed on the judge in the same way that a judge does a plea inquiry. That would also work. We also have to bear in mind when the bans are imposed. It needs to be easy to impose them early. When is that duty triggered? At some point, somebody needs to tell the complainant, and there needs to be a legal duty to do so.
The other thing I will just note is that a complainant can't mistakenly breach the publication ban. There is a mens rea element to this offence. You have to know that a publication ban exists, and the prosecutor would have to prove that beyond a reasonable doubt to successfully prosecute someone for breaching a publication ban. It's a little detail that gets lost when we have this sort of discourse. I just want to raise that for the committee's consideration when you're thinking about this in the amendments.
Thank you for the question.
4:40 p.m.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Ms. Parker, you say that it can be helpful for victims to get a legal opinion about their rights, among other things. As I understand it, it's simply a matter of explaining what you're doing. The Crown prosecutor or the judge, as the case may be, can simply tell the victim that there's a publication ban, which means that they can't talk about that particular case and that, in given situations, they can't say this or that. There won't necessarily be an exchange between the victim testifying and the judge.
Isn't this objective explanation of the situation enough? Shouldn't we let every victim or witness be allowed to consult an independent prosecutor, if they so wish?
4:45 p.m.
Counsel, As an Individual
I'm strongly in favour of independent advice because the meaning of “broadcast”, “transmit” or “distribute” has become more complex with the arising of social media. For example, on the Department of Justice's website, on the page about publication bans, they actually have something that's incorrect in advising complainants, saying that they can't talk about the publication ban with reporters.
4:45 p.m.
Liberal
The Chair Liberal Lena Metlege Diab
I'm really sorry. We're quite a bit over time.
Our last questioner would be Mr. Garrison for six minutes.
4:45 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thanks very much, Madam Chair.
I will let you finish that thought you were on, if it hasn't disappeared already.
4:45 p.m.
Counsel, As an Individual
I think it has. I'm a little nervous being at the committee. I'm not as used to it as you all are.
4:45 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
I want to start then by thanking you for being here and for the work that you do, largely on a volunteer basis, and also for doing it as a survivor. I know it takes a toll and I know being here today will take a toll, so I thank you for that.
I'm going to ask all my questions of you, because we have a shortened time and not another round. When we talked to officials and we asked them about the number of publication bans, there was a little bit of confusion. I guess what I'm asking you is whether it's normal and almost always the case that a publication ban is imposed.
4:45 p.m.
Counsel, As an Individual
I was here that day as well, and I think the Department of Justice official, answering quite correctly in his role as Crown, wanted to give you very specific and precise answers.
They don't keep those statistics, but if you had statistics for the number of sexual assault charges, then you would have the answer to that question because they are imposed in each and every case at the earliest opportunity. In fact, if the Crown were not to ask that they be imposed, they'd probably be in breach, in Ontario at least, of their own Crown policy manual, and in other jurisdictions like the Northwest Territories as well.
4:45 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you for that clarification.
In all of these cases, what would you say is the number of cases in which a complainant is actually notified, in current practice? Does this actually take place?
4:45 p.m.
Counsel, As an Individual
I think the complainant is generally notified in and around the time they come to court to testify. If the case is resolved before there's any testimony given, the complainant isn't notified of the publication ban. I speak to that on the basis of my experience representing complainants, but also in my own case. I was never informed whether or not there was a publication ban in my own case.
4:45 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
If a case is resolved before going to court, the publication ban would continue. Am I correct?
4:45 p.m.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Therefore, we have people who may have never been informed, the case is resolved and they still don't know that they're subject to a ban.
4:45 p.m.
Counsel, As an Individual
Yes, exactly. I've represented some of those people, and we've often had a very difficult time trying to find out whether there's a publication ban at all. Sometimes we have to resort to ordering transcripts of every appearance at the cost of the complainant.