Justice Committee on Oct. 5th, 2023

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

Thank you, Chair.

I thank the three witnesses for being here. Their testimony is extremely important.

We don't have much time, so I won't waste any more than I have to, but I agree with what my colleague, Mr. Brock, said. I can't figure out why it took six months for Bill S‑12 to be introduced in the Senate after the Supreme Court's decision. We literally wasted six months. Now we find ourselves rushing you to testify, which is just rude, if you ask me. I apologize on behalf of all my parliamentary colleagues. I'm sure they're no happier about this than I am.

That said, we don't have much time, so I won't look at every aspect of the bill. Pretty much everything has been covered. However, there's one thing we haven't really looked at, and I'd like to hear what you have to say about it, Ms. Stephens.

Just a side note, Ms. Andrews, I have your proposed amendments in both French and English. That's good, and I can assure you I'll take them into account.

Ms. Stephens, the issue is publication bans when there are multiple victims. For example, there might be a 14-year-old girl, a 20-year-old woman and a 30-year-old woman. Some want a publication ban for their and their family's peace of mind, but others want to talk about it because that's therapeutic. There are many different points of view, all of them equally valid.

How should a publication ban be set up when different victims have different perspectives and different needs?

I realize that a 14-year-old girl needs to be protected whether she wants that or not.

Would you please comment on that, Ms. Stephens?

[Megan Stephens]

I could try answering you in French, but it would take a long time, so I'll answer in English.

I think that organizing them can be difficult and complicated, and no one has really turned their mind to this option. I also think it's important to recognize that there is a perception that there is a formality to these publication ban orders, which is not reflective of reality; they are very casual.

As Mr. Brock pointed out, people walk into bail court and, as I understand the Crown policy in Ontario, you are supposed to ask for these at the first possible appearance. I don't actually think that's wrong. I think that is erring on the side of protection, but there needs to be information and communication to find out if it needs to stay. When they happen, there tends to be.... There is no formal order. There's no form that gets issued, even when we talk about someone who needs to be mailed the order. If a clerk is organized in court, it gets written on the information or the indictment that there is a publication ban in place.

Otherwise, you might have to go and get the transcript of that day's court proceedings to know whether it has been imposed, which also speaks to the problems with tracking how many of these exist. There isn't really a coordinated approach that deals with it. If we have five victims and these bans all exist, it is complicated if one wants to apply later to revoke it and others don't—

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

Sorry to interrupt. I don't mean to be rude, but I'm trying to understand your point of view.

When there are several victims and one of them talks about their experience, that could potentially make jeopardize the protection of another victim's identity.

How can a publication ban be written in such a way as to be effective and to uphold each victim's rights?

[Megan Stephens]

I think it is certainly possible to do that, assuming that the publication ban gets applied to everyone at the outset and there is a publication ban on everyone, but if two people decide, “I want to be able to speak about this going forward”, I think this is the only situation where a judge should hesitate to immediately revoke all the publication bans. The judge should say, “I want to think about this and see if there is a way we can have the publication ban lifted in relation to the two of you and not the other three.” If, for example, they are siblings and share a last name, and one person wants to speak out publicly, they might still be able to have the publication ban lifted in relation to them, as long as they agree to protect their sibling's interest—

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

Is it possible?

[Megan Stephens]

There are some cases where it's going to be more challenging, and that is why there will need to be a judge who can weigh those countervailing concerns and decide whether or not the publication ban could be lifted.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Ms. Stephens.

Mr. Garrison is next.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Madam Chair.

I want to start by saying thanks to all the survivors, not just Morrell but the others who are in the room today, and all those who have come forward. It's a very difficult thing to talk about. Some of you may know that I'm also an adult survivor.

I also thank Laurel Collins, the member for Victoria, because when we started our study on victims, Laurel came to me and said, “I don't think they were thinking about this when they were studying victims, so I really want to make sure that you, as the justice committee, include this in your study, and I can tell you whom you need to talk to.” So Laurel Collins, the member for Victoria, was very influential. She had a private member's bill, which is running faster, and I guess I am frustrated by timing.

Both halves of Bill S-12 are urgent, and I think, Morrell, your comments today really underlined that for me when you were talking about how many times.... I've been trying to get somebody to admit how frequent this is in our society, because this is the most under-reported crime, yet we have dozens and dozens of cases before the courts all the time. I wonder if you could say a bit more about the frequency and the number of people who are subjected to the bans, not just subjected to sexual assault—I don't want to skip over that—but subjected to those bans.

[Morrell Andrews]

We, as a group, receive DMs, Facebook messages and various types of correspondence from victims almost every single week from across the country that ask “Do I have a publication ban? How do I find out?” or “I have a publication ban, but my court case ended four years ago. How do I take it off?” No one understands how to remove them, how to figure out if they have one, or how to find help.

I am not a lawyer, but I've been very fortunate to be connected with lawyers like Megan, Robin and others to whom we refer victims because we simply can't do that work. It's so prevalent, but it's so hard to even know how they're being put in place. The ability for someone to just get help and figure out what's going on with their own identity.... It's absurd, honestly.

As Megan mentioned, it's very casual. If you're a victim, there's nothing casual about being told that you can't talk about your own experience. It's casual for everyone else except for us. It's extremely prevalent. It doesn't make sense how the current regime works. We can't keep doing the work of helping victims ourselves. The law just needs to be changed and clarified so that you take the work away from us, because it's not sustainable. It also shouldn't be done in the shadows because people fear criminalization or have various issues in accessing justice.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you for the work that you're doing. I hope the message that all of you have delivered today—that we need more resources and not just law applied to this—is being heard around the table.

I want to come back to the question of legal aid that you raised, Ms. Stephens. In the legal aid agreements that exist, is this even listed in the categories of things? If people are looking at legal aid programs.... I don't remember ever seeing this as a category of legal aid or as something that people would even find out if they're looking at brochures and things, something that it would be possible to have legal aid for.

[Megan Stephens]

You couldn't get a legal aid certificate for this, for sure. You absolutely couldn't. In fact, legal aid certificates get issued to represent complainants in sexual assault cases when there are third party records applications or applications to admit personal records or sexual history at trial. In Ontario, those are administered by legal aid, so you do get a legal aid certificate. However, it's not paid for out of legal aid funding; it's paid for by the Province of Ontario.

I can only speak about Ontario. It is different, but it's not a category of legal aid. Most of this work gets done for free by lawyers like myself and Robin Parker.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

I know I'm out of time, but I would guess that this would be the same or worse in all of the other provinces.

[Megan Stephens]

I would guess so, too.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Again, thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much to the three of you.

I know you've circulated documents to us. We have them, but if there's anything else you want to let us know after today, please do. We really want to thank you. I know that you came to us months ago, and we very much appreciate it. We've learned from you. It's a topic that, as you mentioned, affects so many. You're right: It should not be incumbent upon you to be helping. Thank you so much for coming.

Thank you to all members of the committee. I wish you a very happy Thanksgiving weekend with your loved ones.

We'll see you after the break.