Breadcrumb trail

October 17, 2023

Federal Ombudsperson for Victims of Crime

Remarks to the Standing Committee on Justice and Human Rights on Bill S-12: An Act to amend the Criminal Code, the Sex Offender Registration Act and the International Transfer of Offenders Act

Honourable Chairperson and Members of the Committee,

Thank you for inviting me to speak on Bill S-12.

I acknowledge that we are on the traditional unceded, unsurrendered territory of the Anishinaabe Algonquin Nation. I honour the leadership, strength, and wisdom of Indigenous peoples, and I accept personal responsibility for pursuing justice and reconciliation.

Office of the Federal Ombudsperson for Victims of Crime

The Office of the Federal Ombudsperson for Victims of Crime (OFOVC) is an independent federal agency, arm’s-length from Justice Canada. We provide information to the public on victims’ rights, review complaints from victims about federal agencies, and advise on criminal justice legislation and policy. Our recommendations are informed by conversations with survivors and stakeholders across the country and around the world, and our Indigenous, Academic, and Service Provider Advisory Circles. The volume of inquiries and complaints to our Office continues to grow. We project a 128% increase in files opened this year versus 2017-18.

Our Office has also prepared a comprehensive response to this committee’s study on improving support for victims of crime that we will submit to you shortly.

Bill S-12

To the courageous survivors who have advocated for S-12, thank you. I also recognize survivors who continue to be silenced by publication bans, and I have heard how painful it has been to be excluded from this process, not allowed to speak to Parliament with your own voice and name. 

One survivor provided consent for me to share their silence for 30 seconds. Please join them in silence.

In June, I appeared before the Senate Standing Committee on Legal and Constitutional Affairs to discuss S-12. I am pleased to see how Senators incorporated feedback from survivors and other stakeholders.

I continue to support recommendations from My Voice, My Choice, and other survivors who have contacted our Office, including:

  • Better education for prosecutors and judges on how trauma affects memory, processing information, and how important autonomy over identity is for recovery
  • Collecting reliable court data on publication bans
  • Informing sexual assault survivors about their rights, respecting their choices, and offering independent legal assistance, where available
  • Treating criminal code provisions for victims of crime with the same weight as measures for the accused
  • And better protecting the therapeutic records of sexual assault survivors who need unconditional safety to externalize and process the violence imposed on their bodies

Some of these recommendations are addressed in Bill S-12, while others require more work. In recent discussions with sexual assault survivors, we have heard about numerous rights violations, barriers, and contradictions in how the criminal justice system responds to sexual violence. Our Office is in the early stages of planning a systemic investigation into these challenges to propose more comprehensive and trauma-informed remedies to Parliament.

In a recent discussion with Crown prosecutors, we heard that the requirement to consult on publication bans in S-12 occurs prior to their regular first contact with complainants. This raises concern that the implementation of S-12 could lead to rushed decisions on publication bans. We have also heard concerns that some survivors may choose to reject or lift a publication ban without understanding potentially long-term consequences.

I understand the need to pass S-12 quickly, so I will limit my recommendations for the proposed legislation to a few key areas that could easily be written into the legislation or included in the implementation.

1. Informed Consent. Decisions about publication bans have significant consequences for survivors. The pros and cons should be clearly presented with supporting resources that provide information in plain, easy-to-understand language. Trauma can make it difficult to process and recall information, so having something to review can help decision-making.

We propose the following addition under Duty to Inform in subsections 486.4(3.2) and 486.5(8), requiring the prosecutor to inform the judge or justice that they have:

  (d) provided a resource on publication bans to explain the law, safety considerations, and how to have a ban varied or revoked

2. Victim-centred information. The addition of a process to provide victims of crime with information after sentencing is one of the essential contributions of S-12 and was my top priority coming into this role. S-12 adds the following language to victim impact statements:

  I would like to receive information respecting the sentence imposed on the offender and its administration.

This is helpful but does not adequately explain that a person who does not consent or register with the Correctional Service of Canada or Parole Board of Canada may not receive information on victim services, restorative justice, prison transfers, how to participate in parole hearings, share safety concerns, or be advised when the person who harmed them is released.

We propose that the Crown prosecutor be required to provide a resource under Section 726.‍3 as part of establishing if reasonable steps were taken to determine whether the victim wishes to receive information. It may also be possible to hyperlink the option added to the Form 34.2 Victim Impact Statement.

Thank you.

 

 


Follow-Up to Appearance Before House of Commons Standing Committee on Justice and Human Rights on Bill S-12


October, 19, 2023

BRIEF RECOMMENDATIONS FOLLOWING DISCUSSION IN COMMITTEE:

1. Add list of criteria that should not be considered when applying sex offender registry, as recommended by legal experts who appeared before the committee.

2. Where publication bans affect multiple people, a victim should be able to have their ban removed without a hearing while respecting bans that remain in place for other parties.

3. Victims should have a right to be provided with information, and information should be readily available.

4. Victims should have a right to remove a publication ban through a simple process that respects their privacy interests.

5. The Canadian Victims Bill of Rights (CVBR) is quasi-constitutional and should receive consideration in Charter Statements on criminal justice legislation so that Parliament, its committees, and the public are better prepared for debate.

CONTEXT:

The Canadian Victims Bill of Rights (CVBR) is quasi-constitutional legislation with primacy over other legislation in Canada, including the Criminal Code. Section 21 states, “To the extent that it is possible to do so, every Act of Parliament enacted — and every order, rule or regulation made under such an Act — before, on or after the day on which this Act comes into force must be construed and applied in a manner that is compatible with the rights under this Act.” In addition, Section 22 (1) adds that if “any inconsistency between any provision of this Act and any provision of any Act, order, rule or regulation referred to in section 21, the provision of this Act prevails to the extent of the inconsistency.”1 2

Current consultations on S-12 demonstrate a conflict between the Criminal Code and section 14 of the CVBR on the right to participation: “ 14 Every victim has the right to convey their views about decisions to be made by appropriate authorities in the criminal justice system that affect the victim’s rights under this Act and to have those views considered.” The current publication ban laws have silenced survivors who have not been able to make submissions or share their experiences on S-12 as it has passed through Parliament. Our Office has heard complaints from survivors afraid of legal consequences if they attempt to exercise their right to participation under the CVBR.

Further, the rights to protection and privacy under the CVBR also need to be respected by S-12, and I believe that the quasi-constitutional rights of victims merit special consideration in all Charter Statements on criminal justice legislation. This would be a step towards accountability for Section 21 of the CVBR, which establishes that victim rights have primacy in the event of inconsistency with other legislation, including the Criminal Code and the Corrections and Conditional Release Act . The integration of the CVBR in Charter Statements on criminal justice would better position Parliament and its committees to ensure their legislated obligations to victims of crime are upheld.

Additionally, sections 9, 10, 11 and 12 of the CVBR guarantee rights to security, protection from intimidation and retaliation, privacy, and identity protection. Emerging case law has established that the section 9 victim’s right to have their security considered by the appropriate authorities in the criminal justice system refers to physical and psychological security. Section 10 provides the right to have reasonable and necessary measures taken by the appropriate authorities in the criminal justice system to protect the victim from intimidation and retaliation. Again, I believe that the current publication ban scheme violates this right, and S-12 must ensure that sexual assault survivors are protected from intimidation and retaliation, not just from the accused, but from the system itself. It is a supreme violation of CVBR rights to be criminalized or under the threat of criminalization for violating measures intended to protect victims of crime.

The framing of section 11 and 12 rights to privacy and identity protection also require special consideration. Section 11 states, “ Every victim has the right to have their privacy considered…” [emphasis added]. This implies a personalized interpretation of the privacy interests of victims, which is further supported by section 14 which clarifies that every victim has the right to convey their views about decisions to be made that affect their other rights under the CVBR. It follows that the section 12 right for a victim to request that their identity be protected should also be interpreted through the privacy interests of the victim rather than the state.

Finally, the current administration of publication bans violates section 6 of the CVBR which guarantees a right to information, on request, about the role of victims in the criminal justice system, services and programs available to them, and the section 7 right to be advised of the outcome of proceedings. The Office of the Federal Ombudsperson for Victims of Crime continues to hear that survivors have been unable to access credible information on publication bans or legal assistance despite making multiple requests. Satisfying the requirements of the right to protection and right to participation requires information to be readily available, and offered proactively when a victim’s interests are affected.



1 Section 20 protects the discretion of police, prosecution, ministerial direction, and review boards.

2 Section 22 (2) exempts some legislation from CVBR primacy: Canadian Bill of Rights, Canadian Human Rights Act, Official Languages Act, Access to Information Act, Privacy Act and Division 1.1 of Part II of the National Defence Act.