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.

Hon. Brent Cotter moved the adoption of the report.

He said: Thank you, Your Honour.

I rise to speak to the Standing Senate Committee on Legal and Constitutional Affairs’s seventeenth report on its study of Bill C-48.

To assist in your recollection of this bill, it is referred to as An Act to amend the Criminal Code (bail reform).

I’ll say more about the bill in a few moments. To give you a sense of the central thrust of the bill, it is to increase the number of offences in the Criminal Code for which, when a person is charged, he or she faces a so-called reverse onus, such that it rests with the accused person to persuade the judge or justice of the peace on a balance of probabilities that they should be released on bail. For these offences, it transfers the “burden of proof,” in legal language, onto the accused in order to get released pending trial.

First, I’ll provide a bit of context. As a general rule, people who are accused of crimes are let out on bail. The presumption is for release, but the Criminal Code provides three situations where a person can be detained: to ensure attendance in court, for the protection of the public and any victim and, third, to maintain confidence in the administration of justice. Usually, it is for the prosecution to establish that one of these situations or conditions for denial of bail exists or is met.

However, for some offences, the Criminal Code has established what is referred to as a reverse onus; that is, it is for the accused person to make the case that he or she should be released. The legal language is that the onus, or burden of justifying release, rests not with the prosecution but the person accused of the crime. This reverse-onus approach for offences, where it has been applied, has been held to be constitutional by the Supreme Court of Canada.

As I say, Bill C-48 will add a series of offences to this category of reverse-onus situations for bail. The categories are generally in the following range: a range of offences associated with the use of a firearm. This is the thrust of clause 1(2), 1(3) and part of what’s referred to as 1(4) of the bill, as well as offences associated with intimate partner violence where the accused person had been previously granted a discharge for a similar offence.

To assist in your understanding of this dimension of the bill — and it’s important, and also the subject of an amendment — a discharge is an outcome in a court where a person has admitted guilt or been convicted of guilt, but the sanction imposed by the judge is to discharge the person of the offence, either absolutely or on conditions. Once the conditions are met, while the record is maintained, the conviction is essentially not recorded against them — generally thought to be at the low end of sanctions for criminal offences.

Now, Bill C-48 came to us in a slightly unusual way. It was introduced in the other place on May 16, 2023. It had been the subject of periodic debate in late spring of 2023. The subject matter of Bill C-48 had been discussed among federal, provincial and territorial justice and public safety ministers prior to its introduction. The bill was supported by the provinces and territories, as well as police leadership in the country.

As many of you will have observed, over the past number of months there has been a good deal of attention paid to occasional events where a person out on bail, or out from custody on an analogous basis, is alleged to have committed a very serious crime, often a crime of violence, with tragic consequences for the victims. The sentiment around these events motivated expeditious action respecting Bill C-48.

On September 18 of this year — that is, approximately a month ago — the bill received second reading, Committee of the Whole consideration and third reading in the other place all in one day, and was adopted unanimously — and I emphasize this — without reference to the Justice Committee there. Unlike nearly all bills of this type, it received no committee study prior to its adoption in the House.

This conveyed two messages to our chamber: first, obviously one of urgency with respect to the consideration of this bill in the Senate; second, given the absence of the study in the other chamber, there was a compelling argument that the bill received meaningful, timely consideration when it was referred to the Standing Senate Committee on Legal and Constitutional Affairs on Thursday, September 21 of this year.

In this case, the bill required sober first thought, if I may say so, and that is what it received in our committee.

Your committee held four meetings and heard from 26 witnesses, including the Minister of Justice, the Attorney General of Canada, officials from the Department of Justice, the Attorney General of British Columbia, police and legal associations, advocacy groups, academics and experts, Indigenous representatives and other stakeholders.

The committee also received nine written submissions.

I would like to briefly highlight aspects of what we heard at the committee and indicate the three places where the committee adopted amendments to the bill.

I anticipate colleagues will expand on these comments and provide perspective. I will also briefly say a bit about observations adopted by the committee.

Comments here then fall into four general categories aligned with your committee’s report.

First, many witnesses underlined the importance of collecting comprehensive and accurate data on bail in Canada to better understand and address the problems plaguing the bail system, a point we heard from nearly every witness, and to analyze the impact of legislation like Bill C-48, particularly on groups already overrepresented in the justice system.

The fact of the matter is that data collection regarding bail is the responsibility of the provinces and territories and not prioritized in the gathering of justice statistics and information. Many witnesses, however, underscored that federal legislation like this bill must be evidence-based and grounded in comprehensive, empirical data. I think it’s fair to say that the empirical basis for the adoption of this bill is weak.

As one of the observations notes, it’s critical that we know more about the bail system generally and exactly what effects, positive and negative, amendments like this to the bail system ultimately produce.

The second point concerns public safety. Witnesses expressed divergent views on the necessity, usefulness and impacts of the measures produced and proposed by this bill with regard to public safety.

In the wake of recent tragic incidents of violence involving individuals on pretrial release, several witnesses noted the importance of preserving public safety and confidence in the Canadian criminal justice system by ensuring that accused individuals are detained when that detention is justified to ensure public safety.

The committee heard testimony explaining that the bill includes targeted measures intended to respond to concerns raised by law enforcement across the country, and specific requests to expand reverse onus provisions to include select offences were received from 13 provincial and territorial premiers, including a co-signed letter in January of this year.

In contrast, some witnesses questioned the potential effectiveness of the proposed amendments, arguing that prosecutors could already argue for the detention of an accused when it is justified, including for reasons of public safety.

Some witnesses stated that the bill would not lead to a reduction of violent crime — as it does not address the root causes of violent crime — and investments in so many areas that could assist were critical.

This brings us to the first amendment to the bill adopted by the committee. Some witnesses recommended the removal of one of the provisions in the bill that would expand the reverse onus provision to apply to an accused who has received an absolute or conditional discharge for a previous conviction involving intimate partner violence. That is one of the provisions that would be a reverse onus provision in the initial bill. The witnesses argued that it would inappropriately target and criminalize survivors of intimate partner violence, as there is often a significant overlap between perpetrators and survivors of intimate partner violence. In some respects, this tends to scoop up relatively vulnerable people in this net, who are captured by the reverse onus clause. Others, including provincial and territorial governments, supported the bill in its existing form as a means to protect survivors of intimate partner violence.

The committee considered and adopted an amendment on this point to remove the reverse onus clause in these discharge and intimate partner violence cases. This was done on division, although I think that’s only technically the correct way of saying it. Senator Batters pointed out to me that, in fact, there was a roll call vote on this, and the vote was 8 to 5.

Third, the report summarizes what the committee heard in relation to the impact of Bill C-48 on Indigenous, racialized and marginalized communities. Some witnesses were concerned that the adoption of the bill would lead to prolonged litigation in bail court, increased demands on the legal aid system, longer bail delays and increased times in detention, exacerbating existing delays in the bail system. Several witnesses warned that these adverse effects would be visited disproportionately upon Indigenous, racialized and marginalized groups who are already overrepresented in the justice system, and already disadvantaged in obtaining release on bail.

All of this led the committee to consider and adopt an amendment proposed, in this case, by Senator Clement. This amendment requires additional consideration of the circumstances of vulnerable persons in judges’ and justices’ decisions respecting bail. The committee amended clause 1 of Bill C-48 to require that a justice presiding over a bail hearing state in the record of proceedings how they went about considering whether a person fell into one of the categories of people in section 493.2 that deserved special consideration — Indigenous or otherwise vulnerable people — and, if such a person is identified, how the justice applied his or her mind to that question of pretrial release.

My fourth and nearly last comment relates to the contemplated five-year review of the impact of Bill C-48. Strangely, as was noted here and at committee, clause 2 of this bill contemplates a five-year review by the Justice and Human Rights Committee of the House of Commons — period; full stop. Perhaps this was an oversight. It’s not the most critical point to be decided because the Senate would have the authority to initiate a study without any legislative blessing from the other place. Nevertheless, the committee expressed its view, noting the oversight, and introduced and adopted an amendment unanimously, as I recall, to Bill C-48 that a directive for a Senate committee — most likely the Legal and Constitutional Affairs Committee — be included in the clause 2 provision, which is the five-year review provision.

Finally, I will highlight four themes in the committee’s observations.

The first point is one that I’ve made already about the need for a comprehensive database reform of Canada’s bail system. It’s frustratingly fragmented and not a priority, but when you’re the one who has to sit in jail waiting for your trial, it’s pretty darn important.

The second point is regarding gender-based violence and violence against women: There is an observation to the effect that the vulnerabilities surrounding gender-based violence — and the need for a comprehensive response to these concerns — need to be a broad and general priority, as has been noted in previous reports.

The third point is an observation that this is an ideal topic for the Law Commission of Canada to consider in its review of the criminal law. The Criminal Code has been amended in a piecemeal way — sometimes by this chamber — for decades, and, no doubt, there are cumbersome, repetitive or inconsistent provisions that need comprehensive reform.

The final theme is the need for Gender-based Analysis Plus. I think it’s fair to say that the committee continues to experience frustration with the government in that it does not provide timely information regarding gender-based analysis. That was also the case with this bill. We received that information only days before clause-by-clause consideration, and I think it’s fair to say that the committee was disappointed not to receive that information prior to hearing the minister testify. In order to study a government bill in a serious and comprehensive way, the committee requires timely access to this analysis. The result in this observation is that the committee urges the federal government to provide Gender-based Analysis Plus information in a timely way when the bill is referred to the committee. Failing to do this, the committee may delay consideration of a bill until the committee receives this information.

I want to extend my thanks to the committee members and to the staff who supported the committee in the work on the bill, especially in the unusual circumstance where we had to be both the house of sober first thought and the house of sober second thought with respect to the bill.

Thank you.

Hon. Pierre-Hugues Boisvenu moved second reading of Bill S-266, An Act to amend the Criminal Code and the Sex Offender Information Registration Act.

He said: Honourable senators, I move the adjournment of the debate for the balance of my time.

Hon. Peter M. Boehm moved:

That the twenty-sixth report of the Standing Senate Committee on Foreign Affairs and International Trade, entitled Cultural Diplomacy at the Front Stage of Canada’s Foreign Policy, deposited with the Clerk of the Senate on June 11, 2019, during the First Session of the Forty-second Parliament be adopted and that, pursuant to rule 12-23(1), the Senate request a complete and detailed response from the government, with the Minister of Canadian Heritage being identified as the minister responsible for responding to the report, in consultation with the Minister of Foreign Affairs.