Justice Committee on Oct. 19th, 2023

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

Thank you, Madam Chair.

The only reason I voted against the previous amendment was the language it used, since obtaining written consent from a victim is nearly impossible.

The language in PV‑4 is also problematic, specifically where it says “if any witness…or the victim wishes to be the subject of an order”. The subject of an order is not the victim—rather, it's the victim's identity. The disclosure of the facts and all the evidence submitted during the trial are the subject of an order, not the victim themselves.

The English and French versions have the same problem. In certain places in the Criminal Code, it's referred to properly, but here, the language is problematic:

“the victim wishes to be the subject of an order”.

No victim who is asked whether they wish to be the subject of an order would say yes.

I think we just need to reword it to indicate that the judge must inquire whether the victim wishes to have their identity be the subject of an order, say, or whether the victim wishes to have all the proceedings and facts revealed during the trial be the subject of an order. As I said, the subject of an order is not the victim.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Fortin.

I will now ask the question. Shall Amendment PV-4 carry?

[Some hon. members]

Agreed.

[The Chair, Liberal, Lena Metlege Diab]

Would you like a vote on that?

[Some hon. members]

Yes.

[The Chair, Liberal, Lena Metlege Diab]

(Amendment negatived: nays 7; yeas 5 [See Minutes of Proceedings])

[The Chair, Liberal, Lena Metlege Diab]

Thank you. Amendment PV-4 is defeated.

Next I have amendment G-1. Would the member please move the amendment?

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

I so move.

[The Chair, Liberal, Lena Metlege Diab]

It is moved.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Shall amendment G-1 carry?

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

Madam Chair, I want to speak in opposition to G‑1.

[The Chair, Liberal, Lena Metlege Diab]

Yes, go ahead.

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

As I see it, there's a problem with G‑1, and the committee heard a lot about it from witnesses: Does it put the Crown prosecutor in a conflict of interest situation when explaining the ins and outs of the order to the victim? Some say no, and others say yes. Personally, I think the Crown prosecutor can't simply inform the victim that a publication ban was issued and say nothing else. If the victim asks what that means, the prosecutor shouldn't be able to tell the victim that they have to look it up and figure it out on their own, because the Crown prosecutor's job is just to inform the victim that a publication ban is in place.

I don't think the amendment says enough. I don't think it's respectful of victims and their rights. The Crown prosecutor should explain to victims what a publication ban is or designate someone to make sure the victim is properly informed. I don't think it's right to give victims so little consideration that they are simply informed in passing of the order's existence with no explanation as to what that means, being told they have to find the information themselves. I don't think the language is comprehensive enough.

I think Bill S‑12 uses better language that is more respectful of the rights of victims and witnesses.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

I tend to agree with Mr. Fortin. What we've heard in our testimony around victims of crime and around this legislation is that victims are feeling left out, in the dark, and they are crying out for more information. I will note that My Voice, My Choice, who are people with lived experience, advocated that this provision should remain in the bill, so I will be opposing this amendment. It is important that as much relevant information as possible be disclosed to the victims.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead,, Mr. Brock.

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

I too am leaning towards opposing this, Madam Chair, unless I can be persuaded by the Liberals as to the justification behind the amendment.

I also agree with Monsieur Fortin. Our job as legislators is to be entirely clear when we are amending or passing legislation, and the way that this is drafted is so vague. It is rife for litigation. It does not indicate in any respect, with any specifics, how a prosecutor is supposed to discharge that particular onus.

I will add very briefly that I disagree with our Attorney General and some of the other witnesses, who opined that this is a dangerous area in terms of how prosecutors are conducting their business in terms of their relationship and discussions with victims.

I consulted with my colleague Mr. Caputo. I can recall, for the years that I was prosecuting where I was dealing with very sensitive matters and dealing with victims, that I had to supply those victims with a myriad of informational points with respect to the process. I view this as a process-driven avenue for a prosecutor to share that particular information.

I think it's incumbent that we strengthen the language, not weaken it and not make it so vague that it's unenforceable.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

Go ahead, Mr. Maloney.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

I appreciate what both Mr. Caputo and Mr. Brock have said, and I respect the fact that they're both experienced prosecutors, but we did hear evidence about this potential conflict that the prosecutor could be in.

I will defer to your experience, but I don't see the wording of this proposed provision as preventing someone in your prosecutorial shoes as being unable to provide that myriad of information. In fact, it's intended to be a safeguard from those who may not perhaps have the experience that you may have in that situation.

I think it addresses the issue that was raised by a number of witnesses we've heard over the last two or three meetings.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Housefather is next.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you, Madam Chair.

I would tend to agree with Mr. Maloney. I think that this is really putting the prosecutor in a very sensitive position of going beyond providing information and essentially providing legal advice.

I would see a real issue if there were a breach of the protective order and the same prosecutor who had given advice was then supposed to prosecute the person to whom they'd given advice, and the person would argue that the prosecutor had told them certain things and they were relying on what the prosecutor told them, creating a real conflict of interest situation.

I would tend to lean toward supporting this government amendment, because I think otherwise it really creates an issue of confusion and potential conflict of interest.

Thank you, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

Go ahead, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

Having heard the rationale for the amendment, I'm more convinced than ever that either the government needs to withdraw it or we need to oppose it.

What we heard from witnesses is that they're crying out for information. The prosecutor—and we have former prosecutors as resources here on our committee—is in a position to provide that information. We're talking about information related to the publication ban, meaning the effects and the circumstances under which someone may disclose information.

What we heard at committee is that people are relying on the prosecutor for these kinds of information. When we heard that some prosecutors could do this and that some prosecutors who are trained to do it could provide that information...well, that's the exact point.

What we've heard is there's an uneven application. Some people are made more aware than others. Sometimes there's a prosecutor who would provide this information, and sometimes there's one who wouldn't. This bill ensures that Parliament is making its viewpoint known that this information should be provided to victims.

Having heard the rationale for the amendment, I'm more convinced than ever that the amendment should be defeated. I would hope that the government would actually withdraw the amendment.

[The Chair, Liberal, Lena Metlege Diab]

Just to make it clear so people know that I am noticing everybody who's putting their hand up, I have Mr. Caputo, Monsieur Fortin and then Mr. Brock. They can start lining up.

Go ahead, Mr. Caputo, please.

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

Thank you, Madam Chair.

I think we have to remember what legal advice is. Legal advice is advising somebody about potential courses of action and the pros and cons of those courses of action and advising someone as to what the person may wish to do.

In my view, this provision actually says, “This is the information you must provide.” It doesn't encourage or discourage a course of action. It doesn't say, “You should apply to set aside the publication ban” or “You should not apply to set aside a publication ban ” or “These are the things you should consider.” That, to me, would be legal advice.

For instance—I'm trying to recall now—we used to have to send out letters under the B.C. Victims of Crime Act that would say, “This is a victim impact statement,” and it wouldn't be uncommon to say what can go into a victim impact statement.

For instance, a victim impact statement cannot have information as to the proposed punishment or what the victim believes should be a punishment. That is objective. You can't do that. This is the form a victim impact statement can take. Suggesting whether you should submit one or how you should express yourself is getting into advice.

I think that this is the exact same thing. I could see it taking the form of a letter saying, “This is what a publication ban is. These are your rights as a victim under the publication ban. This is what you can do. This is what you can't do. Do as you wish. Get legal advice if you wish.”

Thank you.