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First Session, Forty-fourth Parliament, 70-71 Elizabeth II – 1 Charles III, 2021-2022-2023 |
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HOUSE OF COMMONS OF CANADA |
An Act to amend the Criminal Code, the Judges Act and the Director of Public Prosecutions Act (orders prohibiting publication of identifying information)
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FIRST READING, May 31, 2023
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Ms. Collins |
SUMMARY
This enactment amends the Criminal Code to improve communications with a victim before and after a court makes an order to protect the victim’s identity, to prohibit the order from being made without the victim’s consent in a case where the victim is consulted before the prosecutor applies for such an order, and to establish a procedure for revoking or varying such an order. In the case of an adult victim of certain offences, including sexual offences, it also provides that a court may revoke or vary the order when prompted to do so by the victim’s impact statement. Finally, this enactment amends the Judges Act and the Director of Public Prosecutions Act to provide for training relating to such orders and their impact on victims of sexual offences for federally appointed judges and prosecutors.
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Available on the House of Commons website at the following address:
www.ourcommons.ca
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1st Session, 44th Parliament, 70-71 Elizabeth II – 1 Charles III, 2021-2022-2023 |
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HOUSE OF COMMONS OF CANADA |
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BILL C-334 |
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An Act to amend the Criminal Code, the Judges Act and the Director of Public Prosecutions Act (orders prohibiting publication of identifying information) |
Preamble
Whereas, under the Criminal Code, a prosecutor may apply to the court for a publication ban to protect the identity of a victim without first consulting the victim;
Whereas, with regard to the victim of a sexual offence, the court is required to order the publication ban on application of the prosecutor;
Whereas the victim may be unaware of the publication ban and therefore may unknowingly contravene it and face serious legal consequences by speaking publicly about their experience of the offence;
Whereas, in a case where a victim is aware that a publication ban has been ordered, the ban may prevent the victim from freely expressing their own experience of the offence and the harm it caused;
Whereas a publication ban could be misinterpreted as protecting the identity of the accused;
Whereas Parliament recognizes that adult victims of sexual offences should have a choice as to whether their identity is protected by a publication ban;
Whereas Parliament wishes to provide a streamlined means for a victim to apply to the court to have a publication ban revoked or varied if the victim changes their mind and no longer wishes their identity to be protected;
And whereas Parliament believes that federally appointed judges and prosecutors should receive training on publication bans to understand the impact that they may have on victims of sexual offences;
Now, therefore, His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. C-46
Criminal Code
1 (1) The portion of subsection 486.4(1) of the Criminal Code before paragraph (a) is replaced by the following:
Order restricting publication — sexual offences
486.4 (1) Subject to Insertion start subsections Insertion end (2) Insertion start and (3.2) Insertion end , the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(2) The portion of subsection 486.4(2) of the Act before paragraph (a) is replaced by the following:
Mandatory order on application
(2) Insertion start Subject to subsection (3.2) Insertion end , in proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(3) Section 486.4 of the Act is amended by adding the following after subsection (3):
Inquiry by court
Start of inserted block(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall inquire of the prosecutor if reasonable steps were taken, before the application was made, to consult the victim with respect to the application.
End of inserted blockVictim over 18 — consent
Start of inserted block(3.2) If a victim who is at least 18 years of age was consulted with respect to an application for an order under paragraph (2)(b), the presiding judge or justice shall not make the order without the victim’s consent.
End of inserted blockNotice of order
Start of inserted block(3.3) If, on application of the prosecutor, the presiding judge or justice makes an order under paragraph (2)(b) or (2.2)(b), the prosecutor shall provide notice of the order to every victim and witness whose identity is protected by the order, together with an explanation of the procedure for applying under section 486.51 for the order to be revoked or varied.
End of inserted block2 The Act is amended by adding the following after section 486.5:
Revocation or variation of order
Start of inserted block486.51 (1) A court that makes an order under section 486.4 or 486.5 or, if the court is for any reason unable to act, another court of equivalent jurisdiction in the same province may, and, on application of a victim who is at least 18 years of age, must, hold a hearing to determine whether the order should be revoked or varied.
End of inserted blockNotice
Start of inserted block(2) The court shall provide notice of the hearing to the prosecutor, if proceedings in respect of the offence are ongoing, and to every victim and witness whose identity is protected by the order.
End of inserted blockEx parte hearing
Start of inserted block(3) The court may proceed ex parte to hear and determine the application in the absence of the accused, whether the proceedings are ongoing or not.
End of inserted blockFactors
Start of inserted block(4) The court may revoke or vary the order if it is satisfied that
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(a) every victim or witness whose identity would no longer be protected by the order understands the nature and effect of a revocation or variation of the order; and
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(b) the revocation or variation of the order would not identify any other victim or witness whose identity is protected under that order or any other order made under section 486.4 or 486.5.
End of inserted block
Conditions
Start of inserted block(5) The revocation or variation of an order may be subject to any conditions that the court thinks fit.
End of inserted blockPublication prohibited
Start of inserted block(6) If the court refuses to revoke or vary an order, no person shall publish in any document or broadcast or transmit in any way
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(a) the contents of the application;
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(b) any evidence taken, information given or submissions made at a hearing under this section; or
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(c) any other information that could identify a victim or witness whose identity is protected by the order.
End of inserted block
Subsequent application
Start of inserted block(7) The revocation or variation of an order under subsection (4) does not prevent the applicant from making a subsequent application under paragraph 486.4(2)(b) or (2.2)(b) or subsection 486.5(1) in respect of the same matter.
End of inserted block3 (1) Subsection 722(2) of the Act is replaced by the following:
Inquiry by court
(2) As soon as feasible after a finding of guilt and in any event before imposing sentence, the court shall inquire of the prosecutor
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( Insertion start a Insertion end ) if reasonable steps have been taken to provide the victim with an opportunity to prepare a statement referred to in subsection (1); Insertion start and Insertion end
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Start of inserted block
(b) in a case where the victim is at least 18 years of age and their identity is protected by an order made under subsection 486.4(1), if the victim has been informed of the opportunity to request, in the statement, that the order be revoked or varied.
End of inserted block
(2) Section 722 of the Act is amended by adding the following after subsection (8):
Order restricting publication — sexual offences
Start of inserted block(8.1) Despite subsection (8), if the victim is at least 18 years of age, the victim’s identity is protected by an order made under subsection 486.4(1) and the statement expresses a desire that that order be revoked or varied, the court may revoke or vary the order if the court is satisfied that
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(a) the victim understands the nature and effect of a revocation or variation of the order; and
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(b) the revocation or variation of the order would not identify any other victim or witness whose identity is protected under that order or any other order made under section 486.4 or 486.5.
End of inserted block
R.S., c. J-1
Judges Act
4 Paragraph 60(3)(b) of the Judges Act is replaced by the following:
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(b) include, Insertion start if Insertion end the Council finds Insertion start it Insertion end appropriate, instruction in evidentiary prohibitions, principles of consent and the conduct of sexual assault proceedings, as well as education regarding Insertion start the impact on sexual assault complainants of orders made under subsection 486.4(1) of the Criminal Code and Insertion end myths and stereotypes associated with sexual assault complainants.
2006, c. 9, s. 121
Director of Public Prosecutions Act
5 Subsection 3(3) of the Director of Public Prosecutions Act is amended by adding the following after paragraph (c):
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Start of inserted block
(c.1) ensures that persons acting as federal prosecutors participate in continuing education on matters related to sexual assault law, in particular orders made under subsection 486.4(1) of the Criminal Code and their impact on victims of sexual offences;
End of inserted block
Coordinating Amendments
Bill S-12
6 (1) Subsections (2) to (8) apply if Bill S-12, introduced in the 1st session of the 44th Parliament and entitled An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act (in this section referred to as the “other Act”), receives royal assent.
(2) On the first day on which both subsection 2(1) of the other Act and subsection 1(1) of this Act are in force, the portion of subsection 486.4(1) of the Criminal Code before paragraph (a) is replaced by the following:
Order restricting publication — sexual offences
486.4 (1) Subject to subsections (2) and (3.2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way or otherwise made available, in proceedings in respect of
(3) If subsection 1(3) of this Act comes into force before subsection 2(4) of the other Act, then that subsection 2(4) is deemed never to have come into force and is repealed.
(4) If subsection 2(4) of the other Act comes into force before subsection 1(3) of this Act, then
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(a) that subsection 1(3) is deemed never to have come into force and is repealed; and
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(b) subsection 486.4(3.1) of the Criminal Code is replaced by the following:
Inquiry by court
(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall inquire of the prosecutor if reasonable steps were taken, before the application was made, to consult the victim with respect to the application.
Victim over 18 — consent
(3.2) If a victim who is at least 18 years of age was consulted with respect to an application for an order under paragraph (2)(b), the presiding judge or justice shall not make the order without the victim’s consent.
Notice of order
(3.3) If, on application of the prosecutor, the presiding judge or justice makes an order under paragraph (2)(b) or (2.2)(b), the prosecutor shall provide notice of the order to every victim and witness whose identity is protected by the order, together with an explanation of the procedure for applying under section 486.51 for the order to be revoked or varied.
(5) If subsection 1(3) of this Act comes into force on the same day as subsection 2(4) of the other Act, then that subsection 2(4) is deemed never to have come into force and is repealed.
(6) If section 2 of this Act comes into force before section 4 of the other Act, then that section 4 is deemed never to have come into force and is repealed.
(7) If section 4 of the other Act comes into force before section 2 of this Act, then
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(a) that section 2 is deemed never to have come into force and is repealed; and
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(b) section 486.51 of the Criminal Code is replaced by the following:
Revocation or variation of order
486.51 (1) A court that makes an order under section 486.4 or 486.5 or, if the court is for any reason unable to act, another court of equivalent jurisdiction in the same province may, and, on application of a victim who is at least 18 years of age, must, hold a hearing to determine whether the order should be revoked or varied.
Notice
(2) The court shall provide notice of the hearing to the prosecutor, if proceedings in respect of the offence are ongoing, and to every victim and witness whose identity is protected by the order.
Ex parte hearing
(3) The court may proceed ex parte to hear and determine the application in the absence of the accused, whether the proceedings are ongoing or not.
Factors
(4) The court may revoke or vary the order if it is satisfied that
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(a) every victim or witness whose identity would no longer be protected by the order understands the nature and effect of a revocation or variation of the order; and
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(b) the revocation or variation of the order would not identify any other victim or witness whose identity is protected under that order or any other order made under section 486.4 or 486.5.
Conditions
(5) The revocation or variation of an order may be subject to any conditions that the court thinks fit.
Publication prohibited
(6) If the court refuses to revoke or vary an order, no person shall publish in any document or broadcast or transmit in any way
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(a) the contents of the application;
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(b) any evidence taken, information given or submissions made at a hearing under this section; or
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(c) any other information that could identify a victim or witness whose identity is protected by the order.
Subsequent application
(7) The revocation or variation of an order under subsection (4) does not prevent the applicant from making a subsequent application under paragraph 486.4(2)(b) or (2.2)(b) or subsection 486.5(1) in respect of the same matter.
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(8) If section 2 of this Act comes into force on the same day as section 4 of the other Act, then that section 4 is deemed never to have come into force and is repealed.
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