Justice Committee on Oct. 17th, 2023

[The Chair, Liberal, Lena Metlege Diab]

I call the meeting to order.

Welcome to Meeting No. 77 of the House of Commons Standing Committee on Justice and Human Rights. Two of our members are virtual today, and most should be in the room.

Pursuant to the order of reference from the House adopted by the House on October 5, 2023, the committee is meeting in public to continue its study of Bill S-12.

Today’s meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application. I have a few comments for the benefit of the witnesses and members. One witness is virtual and two are in the room for our first panel.

Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mike, and please mute yourself when you are not speaking. There is interpretation for those on Zoom. You have the choice, at the bottom of your screen, of the floor, English or French. For those in the room, you can use the earpiece and select the desired channel. I would remind you that all comments should be addressed through the chair.

For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk is here and will assist me with that in case I miss someone. Thank you for your patience.

I have two very quick housekeeping items before we start with our first panel. A budget was circulated by email from the clerk to everybody, requiring a motion to approve the expenses to be paid to the witnesses for their costs to appear. It is moved by Mr. Housefather and seconded by Mr. Caputo. Thank you very much.

The second housekeeping item is similar. It is in relation to the hospitality expense related to the informal meeting with the United Nations High Commissioner for Human Rights yesterday, Monday, October 16. There were three committees involved in that meeting, and we were all asked to partake in paying part of that cost, which I'm told is less than $200.

Can someone please move a motion that we pay our share?

Thank you very much, Mr. Van Popta. I appreciate that. I think you were there yesterday as well.

Do I have a seconder? I don't need one. Thank you very much, though, Mr. Brock.

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

I second the motion, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

(Motion agreed to)

Thank you very much, everybody, for your indulgence.

I have one more reminder, if I may, on the deadline for Bill S-12. It is simply to let everyone know that, if there are any additional amendments to be distributed, I would remind you to please contact Mr. William Stephenson, legislative counsel, as soon as possible. He will ensure that amendments are properly drafted.

I would remind you that clause-by-clause is happening on Thursday, at the next meeting, and all amendments, including subamendments, must be submitted in writing and sent to our committee clerk.

Panellists, welcome. Thank you very much. We will have each of the three of you speak for five minutes. Due to the time restraints that we have, I will go with six minutes for each party and then conclude the first panel.

We have three witnesses: Ms. Robin Parker, counsel; Mr. Colton Fehr, assistant professor, faculty of law, Thompson Rivers University; and Ms. Janine Benedet, professor of law, Peter A. Allard school of law, University of British Columbia, by video conference.

I will have Ms. Robin Parker begin, please.

You will have five minutes, and the clerk will help me keep time as I take notes. I've seen it in other committees. If I hold up red, that means that the time is up.

Thank you very much.

[Robin Parker, Counsel, As an Individual]

Thank you, Madam Chair.

I'm going to speak on publication bans.

In 2021, sexual assault survivor C.L. was convicted of breaching her own publication ban. Her crime was texting the reasons for her abuser's conviction to her friends and family, a group of supporters. The trial judge described the assault as extremely serious and violent, and her children were in the home at the time it happened. The trial was long and difficult. She had a community of supporters—a network. Some of them were not in court the day the accused was convicted, so she sent them the reasons for judgment via Facebook Messenger. The accused learned of this and complained to the police.

C.L. was charged with violating the publication ban that had been put in place to protect her. The prosecutor reviewed the file and somehow determined it was in the public interest to prosecute her for this. They said they would seek jail if she was convicted. She took money from her savings account and hired a defence lawyer. Her lawyer explained that, if she pleaded guilty, she could avoid jail. Her lawyer would join the Crown in asking the judge to impose a $2,000 fine. Frightened and traumatized, she agreed. As a final insult, on the day she pleaded guilty to something that isn't actually a crime—I will come to that—the judge imposed a $600 victim fine surcharge, even though C.L. was the actual victim.

The law on publication bans is clear and settled. Texting a legal decision to a small group of supporters does not constitute intentional publication, broadcasting or transmission within the meaning of the Criminal Code. C.L. committed no crime, yet every justice system actor who touched the file failed her—the police, the Crown, her own lawyer and the judge.

I reached out to her after reading about her case in the news. With the help of my colleague Karen Symes, we successfully appealed the decision. C.L.'s conviction was quashed and her money, including the victim fine surcharge, was returned to her.

Her case made national news and galvanized a network of survivor advocates who were having difficulties of another kind with publication bans—getting them lifted. These brave women eventually formed the group that testified here, My Voice, My Choice. However, because of the media attention, survivors across the country started reaching out to me—since I happened to have my name in the paper—and my friend and colleague Megan Stephens, whom you met a couple of weeks ago.

In the intervening years, I have assisted many survivors in getting publication bans lifted and advised countless others. Today, I bring this practical experience to the committee, as well as almost three decades as a prosecutor, defence counsel, victims' rights advocate and survivor myself. I have seen the system deal with sexual assault cases from every side.

I share C.L.'s story with you because, in many ways, it was the genesis of these amendments. However, it's important to stress that her ban remains in place because she wants it. The principles underpinning these amendments must be knowledge and autonomy for complainants. These provisions were found constitutional in the Canadian Newspapers' case because of their laudatory purpose of encouraging reporting. It needs to be easy to have the ban imposed and easy to have it lifted. In all cases, there should be a meaningful duty to inform the complainant, so they can exercise their rights.

I welcome and support the amendments in Bill S-12, but I echo the comments of others to stress the need for properly funded counsel for the complainant. Most complainants don't even know there is a publication ban in their case and, I would venture to say, literally none are consulted before it's imposed. This is why, at earlier stages of drafting, together with a network of other lawyers—one of whom is here to testify later, Pam Hrick of LEAF—we are lobbying to impose a duty to inform the complainant of the existence of the publication ban.

A prosecutor cannot provide legal advice to a complainant. Every discussion a prosecutor has with the witness is subject to disclosure obligations. The provision as drafted can put the prosecutor in the position of harming the complainant by having to disclose new information they receive while explaining the publication ban. For example, if the complainant asks, “Can I speak to my counsellor?” or says, “I have told my counsellor the details of this assault”, that may then put an obligation on the prosecutor to disclose to defence something that they might or shouldn't already know, which is that there might be counselling records they could subpoena.

[The Chair, Liberal, Lena Metlege Diab]

Are you able to wrap it up?

[Robin Parker]

I'm almost done.

In closing, I just want to say that this is an issue that touches every Canadian. There's probably not a single household in this country that hasn't been touched directly or indirectly by sexual and gender-based violence. I urge the members of all parties to please work collaboratively to make these much-needed changes to the Criminal Code.

I thank you for the opportunity to participate in our democratic process.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

I will now go to Mr. Fehr.

[Dr. Colton Fehr, Assistant Professor, Faculty of Law, Thompson Rivers University, As an Individual]

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

You have five minutes.

[Dr. Colton Fehr]

Thank you.

I'd like to focus on several of Bill S-12's features that respond directly to the Supreme Court's Ndhlovu decision.

At various points in Bill S-12, a disjunctive test is employed before determining whether an exception from the sex offender registry or a termination order is warranted. The test effectively employs the language of section 7 of the charter, in particular, the overbreadth and gross disproportionality principles. I suggest that this dual exception is unnecessary. Such an approach is only reasonable if there are circumstances where an overbroad law is not also grossly disproportionate.

If a SOIRA order doesn't further the law's purpose, the fact that the order has, per the majority of the Supreme Court, a “serious”, “onerous” and “considerable” impact on the offender's liberty strongly suggests that the effect is also grossly disproportionate. Notably, the original SOIRA legislation only employed the gross disproportionality exception. There's no indication that this exception was too narrow.

This is more than a semantic point, because allowing judges to avoid making a SOIRA order because they think there's no connection between the order's aim and the offender's conduct invites problematic speculation. As the dissent in the Ndhlovu observed, judges have frequently issued exemptions in highly inappropriate circumstances. They have excluded offenders because the judge thought they did not pose a future threat because they sexually assaulted people they knew, were viewers of child sex abuse materials, opportunistic offenders or historic offenders. These types of exclusions demonstrate that judicial bias in sexual offences is present in astonishing ways and with a disturbing frequency, as the dissent demonstrated with its overview of the jurisprudence.

While the proposed amendments provide factors to guide judicial discretion, these factors are stated quite broadly, I suggest. I agree with Professor Benedet, who suggested in 2012 that factors that are irrelevant should also be listed. These should include the fact that the victim knew the offender before the offence, that the act was opportunistic rather than predatory, that the offender has ceased the occupation or activity that brought him in contact with the victims, that he was intoxicated and that the offence did not involve multiple victims or additional bodily harm.

Discretion is also made available in other questionable circumstances. Amendments to subsection 490.012(1) would require that an offence be prosecuted by way of indictment and there be a sentence of two years, a penitentiary sentence, before a SOIRA order is mandatory for sexual offences against children. Does the available evidence establish that only child sex offenders sent to the most restrictive prisons in Canada are sufficiently likely to reoffend as a category to warrant a SOIRA order?

A review of the sentencing jurisprudence demonstrates that even cases of prolonged grooming with multiple assaults would not require an order, leaving the decision to the discretion of judges, which, again, has proven problematic.

With that said, Parliament likely wants to allow for judicial discretion not only to protect against section 7 challenges but also to keep SOIRA orders outside the purview of punishment under the charter. It's worth considering, though, whether the prior laws would be constitutional, the mandatory provisions, if conceptualized as serving investigative and punitive purposes.

In other words, could SOIRA orders not also and perhaps predominately be imposed as punishment, given the court's conclusion that an investigative model requires judicial discretion? Under such an analysis, it's not sensible to speak of overbreadth, because SOIRA orders will readily further the aims of denouncing and deterring offenders from committing further offences, nor is it clear that SOIRA orders would be grossly disproportionate, as the broader objectives of denunciation and deterrents would need to be given due weight alongside the investigative benefits these orders already serve.

While this approach may engage section 11(i) of the charter, this could be avoided. Retroactive application could be avoided by allowing offenders who committed an offence under the prior legislation to apply for exemptions where the impact on them is not inconsistent with Ndhlovu.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Dr. Benedet, the floor is yours.

[Dr. Janine Benedet, Professor of Law, Peter A. Allard School of Law, University of British Columbia, As an Individual]

Thank you for inviting me to take part in this consideration of Bill S-12.

I'm sorry to say, because we're starting just a little bit late, that I do have to teach at 2 p.m. Vancouver time, which is 5 p.m. your time, but I hope I can be here for most of our discussion.

I'm going to focus my remarks today on the proposed changes to the sex offender registry. Not surprisingly, some of the things I'm going to say will track the points that Professor Fehr has made.

I conducted research a number of years ago that was referred to in the Supreme Court's decision in R. v. Ndhlovu. While I prefer the approach of the dissent in that case, at this point the decision for you is how to respond in a way that respects the charter, preserves the integrity of the registry and reflects the realities of how sexual offences are committed, prosecuted and sentenced.

The bill, as I read it, proposes making registration automatic in a few cases and strongly presumptive in others. I have two concerns about the current bill that track what you've just heard. One has to do with the trigger for mandatory registration. The other has to do with the factors the judge must consider in deciding whether to grant an exemption when registration is merely presumptive.

The first goes to a point that's already been raised with you, which is that this bill, as I read it, is saying that registration is mandatory for first offenders, and that it is triggered where the offence is prosecuted on indictment, the sentence is two years or more and the victim is under 18. This is a very high bar that is not, obviously, required by the Supreme Court.

The reality today is that major sexual assaults are often prosecuted by summary conviction for various operational reasons. The maximum penalty for sexual assault prosecuted summarily is only 18 months—there's an anomaly in the Criminal Code—unlike two years for other summary offences.

These serious sexual assaults against children will not attract the same mandatory registration, despite the fact that the circumstances of the offence and the risk of reoffence may be identical. Summary conviction offences are not invariably minor offences. I think it's important to stress that point.

The two-year threshold is also high. The resurgence of conditional sentences for sexual offences, including sexual offences against children, means that no offence where a conditional sentence is applied will attract mandatory registration either. You will see the avoidance of mandatory registration becoming a chip in plea bargaining, as well as a reason that some judges may sentence to less than two years to avoid that collateral consequence of conviction.

I would just say that if you are being sentenced to imprisonment for a sexual offence against a child, whether on summary conviction or by indictment, surely it cannot be unreasonable to also expect that you will be placed into the sex offender registry. To me, that trigger doesn't make a lot of sense. I think it could be lowered.

The second point—and it's one that has already been raised—is what happens if registration is not mandatory and only presumptive. Here we see the exceptions, and you've heard some concerns with those.

We know the problem is that, in the past, when judges were given discretion along these lines, they ordered exemptions frequently. My research showed that they did so in up to a third of cases, at least for those for which reasons were available. These exceptions weren't exceptional at all.

This is part of a pattern. When judges exercise unfettered discretion in the context of sexual offences, they fall into stereotypical reasoning. We've seen it in the context of sexual history evidence, private records in the hands of third parties and in the sentencing of offenders for both adult and child victims. There is the myth that opportunistic offenders are not real sex offenders, that men of good standing in the community are not real sex offenders, and that where no additional violence is used or children give de facto consent, these are not real sexual offences.

Bill S-12 does attempt to offer some conditions that must be considered by a judge in deciding whether to grant the order. However, most of them are vague and general and permit myth-based reasoning.

[The Chair, Liberal, Lena Metlege Diab]

Ms. Benedet, do you want to wrap it up, or can you leave it maybe for questioning? Thank you so much.

[Dr. Janine Benedet]

Yes, I'll leave it for questioning, except to say that I was going to support the point that Professor Fehr made. There needs to be a list of factors that the judge may not consider in deciding to grant the exemption. That's present in other parts of the Criminal Code, and it ought to be used here.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Members, we will have one round of six minutes each per party, and I will start with Mr. Frank Caputo.

You have six minutes. Thank you.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Madam Chair.

If I could please, I would just address all of our participants here today.

Ms. Parker, I don't know if we've met before, but thank you. I thank you for your courage in speaking out as a survivor and as somebody who has been counsel on these publication ban matters. This is not the type of law that people probably think about when they go to law school. I know it probably doesn't pay very well, if at all, so I thank you for your sacrifice and for your contribution.

To Professor Fehr, it's nice to see you. Full disclosure, I spoke to his criminal law class. I used to teach at TRU law, so thank you for being here.

To Professor Benedet, it's nice to see you. You presented to us when I was a Crown prosecutor in B.C., so it's nice to see you there as well.

[A voice]

Do you have a question?

[Voices]

Oh, oh!

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

I have so much to go through here.

I'm going to start with Professor Benedet, talking about low risk versus no risk. As my colleague, Mr. Brock, points out, the best predictor of future behaviour is past behaviour. Given that issue, does it not follow that we should be considering a mandatory triggering, especially for a sex offence against a child?

[Dr. Janine Benedet]

I would say, yes. Certainly, a sexual offence against a child that attracts a sentence of imprisonment, whether custodial or conditional, is a serious offence. The route at which that is prosecuted, summary conviction or indictment, is really irrelevant. It's the facts of the offence and the penalty it attracts that speak for themselves.

Yes, it seems to me that it is a circumstance in which mandatory registration is justified and could be supported as constitutional if it were to be challenged.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

One thing I was reflecting on...and anybody can chime in on this. Let's say we had a joint submission, which essentially ties the judge's hands except in very rare circumstances, where registration isn't mandatory. Theoretically, you could actually have a plea bargain that would say, this joint submission is such that we're not asking the judge to impose registration under SOIRA.

Would you agree with that, any of the witnesses?

Ms. Parker, you have a fair amount of knowledge in this area, so feel free.

[Robin Parker]

I don't feel I should speak to SOIRA here today.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

That's fair enough.

[Robin Parker]

I'm actually going to defer to my friends who have studied this much more than I have.

[Dr. Colton Fehr]

I'll also defer to Professor Benedet.