Hon. Marc Gold (Government Representative in the Senate): Thank you for your question. It’s an important one.

The government has taken a public health approach to the regulation of cannabis. That was the hallmark of the legislation we passed in this chamber some years ago. The government, in terms of its responsibility, along with provinces and others, is disseminating clear, factual evidence and information to users and potential users as to the health risks, the potency of the products, their composition, the provenance and so on. In that way, Canadians of all ages are able to make informed choices as to whether they should consume, what they should consume and when they should consume.

The government will continue to make available public information to continue to educate and inform Canadians about cannabis. It supports and plays a role in a national dialogue about the health and safety of these products.

Hon. Marc Gold (Government Representative in the Senate): Thank you for your question.

It is the position of the Government of Canada that it has both the interest and the right to take positions on legislation that is before the House or the Senate. This government does so. The vote in the other house reflects quite clearly some preoccupations that the government had with that private member’s bill. Although a handful of members of the governing party voted for it, a great majority did not.

The Government Representative Office in the Senate, just as the office of the opposition, has the right to send ex officio members to committees. We do so when we are advised that our counterpart attends. We were advised that would be the case, and we went there to listen to the debate and to express our views. In the first instance, my colleague abstained on an amendment in question. It passed nonetheless.

Hon. Marc Gold (Government Representative in the Senate): Thank you for the question and for pointing out the importance for Canadians of not only RDI and CBC, but also of access to information. I am setting aside all the issues around Bill C‑18 and all the issues tied to the funding of CBC/Radio Canada — which are still issues, especially in certain parts of our country.

I will certainly take your concerns seriously and share them with the government so it can act to better help Canadians have access to the information we all need as and when it gets the opportunity to do so.

Hon. Marc Gold (Government Representative in the Senate): Every time I try to explain the multitude of factors that unfortunately contribute to the challenges facing Canadians — not just the poor, but also an increasing number of middle-class families — the government is accused of being irresponsible.

The government is doing its part to help Canadians who need help. It is encouraging producers and supply chain companies to ensure that price increases stop, and the hope is that we will see lower prices and other support programs for Canadian families who are struggling as a result of the rising cost of living.

Hon. Marc Gold (Government Representative in the Senate): Thank you for the question. The Government of Canada is doing everything it can to reduce wait times, eliminate processing backlogs and welcome more newcomers to Canada.

I am told that the government processed approximately 5.2 million applications, twice as many as the year before, and was able to restore the 60-day service standard for new study permit applications. That was made possible thanks to the digitization of applications, the hiring of additional staff and the streamlining of the application process.

Hon. Marc Gold (Government Representative in the Senate) moved:

That, in relation to Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer Act, the Senate agree to the amendments made by the House of Commons; and

That a message be sent to the House of Commons to acquaint that house accordingly.

He said: Honourable senators, I rise today to speak to Bill S-12, An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act.

[Translation]

As you may recall, our chamber made several amendments to the bill last June, some pertaining to the publication ban rules. The bill is back before us once again, this time with new amendments to consider.

[English]

Bill S-12 proposes important reforms empowering victims of crime. It does so by changing the rules governing publication bans and a victim’s right to information. It also amends the National Sex Offender Registry in response to the Supreme Court of Canada’s decision in R v. Ndhlovu, which — as you’ll recall — declared certain provisions related to the registration of sex offenders, as well as the duration of those orders, to be unconstitutional.

The publication ban provisions are those that were amended further by the other place and are the subject of our examination today.

Colleagues, publication bans are useful tools to shield the identity of victims and witnesses, thereby protecting them from further harm. However, it is not uncommon for some survivors to want to share their stories publicly, and it can come as a surprise to them that they are unable to do so because of the bans that are in place. Survivors are also often unaware of the procedures to have such bans lifted.

It is in response to these concerns that Bill S-12 proposes changes to the publication ban regime with the aim of giving a greater voice and a greater agency to victims in the criminal justice system, including survivors of sexual assault and those wishing to share their stories.

[Translation]

Victims’ groups that appeared before the Standing Senate Committee on Legal and Constitutional Affairs were of the opinion that, as written, the bill did not go far enough toward achieving the goal of respecting victims’ and witnesses’ wishes when publication bans are imposed. Witnesses called for greater clarity in identifying actions meant to be protected by a ban and for a simpler process to change or revoke a ban. The committee then made several amendments to create a more robust, victim‑centred approach to publication bans.

While the majority of those Senate amendments are retained in this version of the bill, a small number of changes were made in the other place, and they impact the amendments we made. Those changes were made because of witnesses’ concerns about unintended consequences. Nevertheless, in my opinion, the current version of the bill does reflect the spirit and objectives of the bill the Senate passed earlier this year.

[English]

The first change relates to the Senate amendment requiring the prosecutor to advise the victim or witness of the existence of a publication ban and to inform a victim or witness about its effects. This would include the circumstances in which identifying information could be disclosed without breaching the order.

Concerns were raised by some Attorneys General — particularly from Ontario and Nova Scotia — that the latter part of the amendment, which required a prosecutor to outline which information could be disclosed, was problematic. It was felt that this element risked unintentionally requiring a prosecutor to provide victims and witnesses with legal advice on a matter that the prosecutor may have the responsibility to prosecute at a later date should a breach be committed. This same concern was also expressed by Ms. Megan Stephens, a criminal and constitutional lawyer who worked as a prosecutor for more than a decade and who represents victims in sexual assault proceedings, including in proceedings to lift publication bans.

Accordingly, with this information, Bill S-12 was amended to remove this requirement, thereby eliminating legal and policy risks concerning prosecutorial independence and the potential conflict of interest prosecutors could face in these situations. Colleagues, prosecutors will still be required, however, to provide information to victims about publication bans, including the right to apply for modification or revocation.

Colleagues, two technical amendments were also included to ensure that the bill’s objectives are clearly understood. The first clarifies what kind of information sharing would not be captured by a publication ban, including when a victim or a witness shares information about themselves provided that the information does not identify a person who is protected by another publication ban. As passed by the Senate, the bill’s provisions on this point were limited to persons protected by the same publication ban. This technical change recognizes that multiple victims can be protected by multiple publication bans.

The second technical amendment was in relation to language in the bill as passed by the Senate that spoke to persons who were “subject to the order.” This provision allowed victims who were protected by a publication ban to disclose information about themselves. But, as was noted by the witness in the other place from the National Association of Women and the Law, this idea would be better reflected by using the formulation “subject of the order.” In my view, this amendment is appropriate and provides for the harmonization of the language in the English version of the legislation with that of the French version.

Next, during the committee’s study of Bill S-12 in the other place, some witnesses expressed a desire for the bill to be clearer about to whom disclosure might be made by victims or witnesses without them falling within the scope of a publication ban. The Senate committee added a provision to Bill S-12 ensuring that a publication ban does not apply where the disclosure of information is made by the person whose identity is protected provided the disclosure was not done for the purpose of making the information public.

This limitation was amended for greater clarity and now specifies that it also includes cases where the disclosure is made to a legal professional, a health care professional or a person of trust, but is not made for the purpose of making the information public.

[Translation]

I would now like to draw your attention to a small but important change to the wording of clause 4 of the bill, which made reference to the privacy rights of the accused. The Senate amendment included the expression, and I quote, “other than the accused” in the proposed subsections 486.51(2) and 486.51(3) to make it clear that the accused’s right to privacy should not be taken into account when determining whether to revoke or vary a publication ban. This amendment was understood as a change reflecting common law, and it was concluded that considerations related to the accused’s privacy were irrelevant when determining whether a publication ban had to be imposed or revoked.

However, concerns have been raised over the fact that wording specifically excluding the accused’s right to privacy could have the opposite effect and lead to the erroneous conclusion that, without such wording, the accused would otherwise have been able to invoke a right to privacy in the application.

The common law is clear. An accused has no right to privacy with respect to publication bans. This wording was therefore struck from the bill to better reflect the policy intent of the provision and thereby eliminate any risk of confusion.

[English]

Another change relates to the amendment made by the Senate to the publication ban provisions in the context of the mental disorder regime. Colleagues, this regime governs accused persons found unfit to stand trial or not to be held criminally responsible because of a mental disorder, or NCR.

This amendment would have required the Review Board, charged with overseeing persons subject to this regime, to inform those whose identities are protected by a section 486.4 publication ban about the existence of the order, its requirements and the consequences of failing to comply.

While the objective of this amendment was clearly laudable, there were concerns that its addition did not reflect the other changes made to section 486.4 and section 486.5 publication bans, and it was determined that further study of this issue would be beneficial.

The “not criminally responsible” regime is a unique area of the criminal law with different considerations, and it needs to be considered comprehensively. I further understand that Review Boards operating in this regime are constituted provincially; therefore, the government believes that a review of the mental disorder regime should be a separate exercise from this bill, requiring more thorough examination, especially in relation to these provisions. For these reasons, this clause has been deleted unanimously by the Standing Committee on Justice and Human Rights in the other place.

Finally, a coordinating amendment between Bill S-12 and private member’s Bill C-291 was added. Bill C-291, which was referred to the Standing Senate Committee on Legal and Constitutional Affairs last June, proposes numerous amendments to the Criminal Code by replacing the term “child pornography” with the term “child sexual abuse and exploitation material.” This coordinating amendment would ensure that the new proposed definition of “designated offence” in Bill S-12 aligns with the updated terminology proposed in Bill C-291 should both bills receive Royal Assent and come into force.

In summary, colleagues, the committee in the other place agreed with six Senate amendments, albeit advanced on behalf of the government and drafted with key stakeholders. The other place also agreed with five other Legal and Constitutional Affairs Committee amendments with further modifications, disagreed with one committee amendment on the issue of mental disorder and brought in one coordinating amendment.

[Translation]

Honourable senators, I support Bill S-12, as amended. These amendments promote the bill’s initial objectives and honour the spirit of the improvements that the Senate made previously. I would invite you to support this bill and its swift passage.

[English]

Before I conclude, I would like to clarify one final point: As colleagues know, Bill S-12 responds to the Supreme Court of Canada’s decision which identified a constitutional deficiency with the status quo. The court imposed a deadline of October 28, 2023, for new legislation to be in place.

Earlier this week, Senator Dennis Patterson asked me whether the government would be prepared to seek an extension from the Supreme Court. I was subsequently informed that for contingency purposes, the government did, indeed, act responsibly by seeking an extension of the deadline in case things did not work out either in the other place or here in the Senate. Earlier today, I was advised that an extension was, indeed, granted yesterday.

That said, I encourage senators to proceed with consideration and adoption of the message on Bill S-12 today, as I believe the chamber is ready, and the other place acted quickly so that we would be able to bring this to Royal Assent, notably to ensure that the unconstitutional provisions at issue are repealed and replaced by a better, stronger law that we improved here with our work.

Just as the government acted responsibly in requesting an extension, might I suggest and submit that the responsible thing for the Senate to do today is to conclude debate and adopt the message to prevent prolonging a status quo identified by the Supreme Court as constitutionally deficient.

Bill S-12 would bring much-needed clarity to the National Sex Offender Registry in Canada, it will empower victims of crime and help build confidence in the criminal justice system.

Colleagues, thank you very much for your time today.