Justice Committee on Oct. 17th, 2023

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

Thank you for your answer.

How do the provisions of Bill S-12 better reflect victims' rights to information under the Canadian Victims Bill of Rights?

[Pam Hrick]

I would actually defer to my co-panellist on that.

[Dr. Benjamin Roebuck]

Thank you.

I think that a victim's right to privacy is often interpreted for them and not in a way that benefits them. It helps to bring more choice to the way that privacy is exercised and allows people to choose whether they want those measures in place. Some people certainly want them and some people definitely don't.

I think that we need to respect that people have different trajectories and different things that help them heal and feel protected, so choice is really important under the Canadian Victims Bill of Rights.

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

Perfect.

My question is for both of you. Either one of you can answer.

How can the information on the justice website and the victim services materials be improved to better educate the public on publication bans? What kind of information would you like to see in those resources?

[Pam Hrick]

I would like to see a plain language explanation of exactly what the law is, once and if Bill S-12 is passed by the House of Commons back to the Senate, with any amendments of course. If the Parliament approves that, I'd like to see plain language resources for survivors to explain exactly what the legislation requires.

I would like to see one-stop shopping, ideally, for resources that survivors can avail themselves of to receive support, guidance and hopefully independent legal advice where it exists.

Those are the kinds of things that I'd like to see housed in one place. Again, the plain language nature of it is so important, especially when people are accessing those resources in a time of intense trauma.

[Dr. Benjamin Roebuck]

The risks of removing a publication ban need to be clearly explained. What does this mean in terms of media engagement, people taking your story and your experience and broadcasting that without your consent if the ban has been removed? It's really important that's understood.

Within the justice system we have this opportunity to provide better information across the board. Someone who's accused has legal advice to walk them through the whole process and explain everything. We don't do that with victims and complainants. We could at least have a set of resources that, at a bare minimum, explains the process that's provided proactively to people as they navigate the system—plus independent legal advice.

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

To follow up on your comments just now, we often use the word “trauma-informed” or “victim-centric” to refer to our aspirations for the justice system and what we'd like to see.

In the context of publication bans, how can we make this a reality?

[Dr. Benjamin Roebuck]

It's taking a step back and saying, who is this about? The system exists because someone was harmed, and often they're peripheral to the process. That really has to be the starting point—that we look at who was harmed, what justice looks like and what's required—and have that be centred in the process. That will lead to different decisions and a different investment of resources.

[The Chair, Liberal, Lena Metlege Diab]

You have 30 seconds.

[Pam Hrick]

If I can piggyback onto that point within 30 seconds, it also calls for looking at ways, other than the criminal system, to provide that kind of justice to survivors, to look at restorative justice or transformative justice options, to look at centring survivors' healing in the process and to giving them choice in how they go about that healing path.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Mr. Fortin, you have six minutes.

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

Thank you, Madam Chair.

I'd like to thank the witnesses for being with us today. Their participation is valued.

We're dealing with a subject in Bill S‑12 that I think is important. It's a bit incidental initially, because there's a rush with the sex offender registry part of the bill, but the bill also addresses the issue of publication bans. This seems to me to be a serious matter. Victims who have testified before us on all kinds of bills and situations have often talked about these orders.

Correct me if I'm wrong, but I think a number of things will be repeated in every case. What is a publication ban? I know that not everyone will read the part of the Criminal Code amended by Bill S‑12 and be able to understand what it's about or what can or can't be done. It should be possible to produce informational material. In fact, Ms. Dhillon just asked the question. We're all on the same topic. This material could be distributed to victims beforehand. Before victims decide whether they want a publication ban issued in their case, they need to be able to understand the implications of such a ban.

Of course, each case is unique. The Crown prosecutor would probably have to add specific details for each case or answer questions. In addition, courts or courthouses could make resources available to victims to answer their questions. This is already being done in different ways on different subjects. In short, there's surely a way to organize more specific information.

Generally speaking, do you think it would be possible to produce a kind of tutorial, even if it meant that victims would have to enlist the services not only of a lawyer, but also of an educator, to develop materials that would adequately inform them of their rights and obligations in connection with a publication ban?

[Dr. Benjamin Roebuck]

I think a lot of those resources already exist. The provinces, territories and the federal government have resources that explain the justice process, but nobody has a requirement to provide them. It's a simple bridging mechanism: We can say that people who experience harm should at least be provided with this information.

People don't know what to ask for. The CVBR requires them to ask for information, but they don't know what's available. We need to reverse that onus to say that, when somebody reports a sexual assault, this is information that should be provided to them. When they experience a homicide in their family, this is important information.

I think that's an easy thing that's low cost. The resources already exist. We just need a mechanism to provide them proactively.

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

I agree with you, Mr. Roebuck. This is more or less what Bill S‑12 does, whereby Crown prosecutors will have to answer the judge's questions and say whether they have taken into consideration what the victims want. If a Crown prosecutor feels that this puts them in an awkward position, they can produce those documents and simply answer the questions.

There's probably a way of articulating something useful. Publication bans are issued to protect victims, but what the victims want isn't taken into account, which strikes me as absurd, and it makes no sense in our criminal system.

The obligation imposed on the Crown prosecutor doesn't place them in a conflict of interest, particularly since, in principle, there is no case to win. The Crown prosecutor is there to establish the truth.

There are about two minutes left, and I would like to hear more about the potential conflict of interest a Crown prosecutor might have in answering victims' questions about the ins and outs of a publication ban.

[Pam Hrick]

I've seen this a bit, not just with my LEAF hat on but also with the experience of having advised complainants with section 276 and 278.1 applications before the court.

You don't want complainants and survivors having in-depth conversations with the Crown that are unnecessary to the process, because that triggers, as you've heard from multiple people here, disclosure obligations.

I have seen, in my own practice, examples of young women, in particular, who are experiencing a trauma and who are in an unfamiliar and hostile environment in many respects, not being in a position to understand that the Crown is not their lawyer and that victim witness assistance program practitioners here in Ontario are not their counsellors and are not their specific advocates. The things that are told to them are then disclosed to the defendant and that creates really awful knock-on effects that we want to avoid. That is why we go back to independent legal advice being incredibly important, by providing that solicitor-client privileged space for complainants and survivors to have those conversations and get the advice that they need.

On the issue of education, I do want to quickly say that there is such a need to invest in that in a way that brings experts into the conversation. Otherwise, you leave it to not-for-profit organizations—I could talk about this more—to provide these resources, and we're just not adequately resourced to do it.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Ms. Hrick.

Our last questioner is Mr. Garrison for six minutes.

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

Thank you, Madam Chair.

Thank you to both the witnesses for being here.

Mr. Roebuck, I know that at the end you kind of ran out of time, and I was very interested in the path you were starting down. Maybe you could say a little bit more.

I've been focusing my questions on publication bans, which are the front end, and you were talking a little bit about the back end, if you like, of the process. Could you just maybe give us a bit more on that, which you ran out of time to talk about?

[Dr. Benjamin Roebuck]

Yes. Thank you.

Can you imagine if, in your family, someone was murdered and the federal government didn't think that it was appropriate to let you know that the offender was being released, or if you could participate in a parole hearing but they didn't tell you that it was happening. That's the problem. Nobody has a legal responsibility, prior to Bill S-12, to inform people, certainly on the federal side, about how to register to receive information. That's a major source of complaints to our office.

There are women who participated in the National Inquiry into Missing and Murdered Indigenous Women and Girls, who have family members who disappeared or were killed, and still, after all of that process, they aren't being told about these hearings and about the release of people back into their communities, so this change has to happen.

I think we need to improve overall information. I'll just highlight why independent legal advice is really important in sexual assault.

We had a complaint recently where somebody said, “I wish that someone had told me to speak to a lawyer before I reported it to the police, because I told them that I had seen a counsellor and that I was journaling.” Both of those things became part of the disclosure and were subpoenaed by the offender. In the end, the complainant stayed their charges because it felt like such a personal invasion.

This is happening across the board, where survivors' experiences are not being protected in the way that we do justice. That is certainly the case with this issue of therapeutic records, which I know has passed through the Supreme Court and has had different perspectives. However, I don't think that a survivor-centred perspective has been fully considered on that, and it could be better protected with independent legal advice.

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

The suggestion has been made that we certainly could amend Bill S-12, at least on the prosecution possibility, to add a list of circumstances that would not result in prosecution. That would include things like counsellors, legal advice and trusted individuals for minors. Would you say that it would be an addition that would be important?

[Dr. Benjamin Roebuck]

Yes. I don't think that a survivor should be criminalized through a measure that the federal government thinks is respecting their right to privacy. It just doesn't make sense. I think sometimes we arrive at these spaces that don't make sense when we step back and consider them.

We can do better than that for people who experience violence. We can be respectful, honouring and helpful. Even the possibility of criminalizing someone for talking about their body and their experiences is violating. It's not respectful.

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

Maybe Ms. Hrick, you can talk about what happens in practice. Even though all of us might look at the bill and say that this shouldn't happen in cases of prosecution, we are actually hearing that it does happen because of that misunderstanding of the law.

[Pam Hrick]

Absolutely, and I think you've heard the best kind of evidence on that point from people like Robin Parker and Megan Stephens. I urge you to listen to that, based on their decades of experience representing survivors and also their experiences with Crown and criminal defence lawyers as well.

I think one of the good things about Bill S-12 as it's currently drafted is that it makes it much clearer. A line Crown prosecutor can go to the legislation and see it's not appropriate for them to pursue charges because the three criteria there are not met. It doesn't have to be something that is a matter of discretion as they are figuring it out, in some cases really quite poorly, as evidenced by the examples we have heard about. It's setting it out much more clearly and being very narrow about the circumstances in which it would ever be appropriate to pursue that.

I think that is another good thing about this legislation—that clarifying element of it.

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

I want to go back to you, Mr. Roebuck.

In terms of victims services being provided, you made a remark about legal aid and people not knowing legal aid is available. My impression is that it's not always available, and maybe that's because I'm from a different province.

Could you say something about that? Then I will go to Ms. Hrick on whether legal aid is actually available.

[Dr. Benjamin Roebuck]

I think the federal government, through the victims fund, has done a pilot project across the country to fund independent legal assistance in cases of sexual assault and is piloting it as well in cases of domestic violence.

For now, we have a system that we can use, but we certainly need to consider how to better embed those rights and services for survivors into the justice system.

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

As of this point, it's only a pilot though. It's not—