My Voice, My Choice’s Journey to Amend s. 486.4 of the Criminal Code
The My Voice My Choice journey that began in January 2023 stands as a testament to the power of collective determination and advocacy. We, the members of My Voice, My Choice know first-hand that our justice system is not victim-centred and has not been particularly accommodating to victim-complainants. It has been our firm belief that the justice system needs to prioritize the healing of victim-complainants and avoid retraumatizing us. Bill S-12, conceived in response to our concerns raised in October 2022 during the JUST meeting, represents a critical step forward in better supporting victim-complainants of sexualized violence.
In the lead-up to the first reading of Bill S-12 at the Senate on April 26th, 2023, our collective effort had been truly remarkable. Since 2022, our members have sent approximately 600 emails, engaged in countless phone conversations, conducted numerous Zoom meetings, appeared on multiple podcasts, and had undertaken a significant media campaign. All of these endeavours culminated in the introduction of Bill S-12 in the Senate in April 2023. This bill aimed to address the concerns we had raised back in October 2022 during the The Standing Committee on Justice and Human Rights (JUST) meeting.
During the first week of May 2023, we journeyed to Ottawa to discuss our concerns with the then Minister of Justice and Attorney General, David Lametti. Over the course of our visit, we conducted around 16 meetings with Parliamentarians, shedding light on the existing laws regarding publication bans and sharing our recommendations for improvements that would better support victim-complainants of sexualized violence.
The amendments we were advocating for:
1. Clarify that only victim-complainants of sexual offenses and witnesses under 18 years old are covered by Section 486.4 publication bans. [Section 486.4(1) and throughout]
There has been confusion regarding the scope of Section 486.4 publication bans. This amendment aims to clarify that only witnesses under 18 years old and victim-complainants of sexual offenses are covered by this section.
2. Ensure that prosecutors are required to promptly inform victim-complainants or witnesses of their right to request a publication ban, with the order being made with the victim-complainant's or witness's consent and on their behalf. [Section 486.4(2), (3.1), (3.2)]
Neither the current text of the Criminal Code nor Bill S-12 direct prosecutors to inform victim-complainants of their right to request a publication ban. This amendment places this responsibility on prosecutors, who are likely to interact with victim-complainants early on and should always act in accordance with the victim-complainant's wishes.
3. Prevent the imposition of a publication ban against the wishes of the victim-complainant or witness. [Section 486.4(3.1)]
There have been instances where publication bans have been ordered against the explicit wishes of victim-complainants. This amendment ensures that if a victim-complainant has clearly stated their disinterest in being subject to the order, it cannot be imposed against their will.
4. Allow for an interim order on the identity of the victim-complainant or witness if their wishes are unknown. [Section 486.4(3.1.1)]
Recognizing that some victim-complainants may find publication bans helpful while others do not, this amendment introduces a flexible option. It enables the issuance of an interim order that can be easily waived by the victim-complainant when their wishes regarding anonymity are unclear, thus safeguarding their identity cautiously.
5. Provide the victim-complainant or witness with the order when a publication ban has been implemented. [Section 486.4(3.2)]
To address the challenge of poorly recorded or inaccessible orders, this amendment ensures that victim-complainants receive essential information about their bans, aligning with the principles of the Canadian victim-complainants Bill of Rights.
6. Clarify the application process for varying or revoking a publication ban, separate from Section 486.5 (discretionary publication bans), with a focus on respecting the victim-complainant's interests and freedom of expression. [Section 486.4(4) to 486.4(7)]
Publication bans for victim-complainants of sexual offenses serve a different purpose than bans for other participants in the justice system. This amendment distinguishes the process for varying or revoking a Section 486.4 order, ensuring that victim-complainants can swiftly remove their bans with the assistance of the prosecutor, while their freedom of expression is taken into account.
7. Expand the limitation section to ensure that support individuals are not subject to criminal charges for communicating information while assisting victim-complainants or witnesses. [Section 486.4(11)]
Victim-complainants frequently turn to trusted support individuals while navigating through the intricate legal system, primarily because of the insufficiency of support and resources available within that system. This amendment safeguards against criminalizing individuals who provide assistance to victim-complainants, ensuring that victim-complainants' support networks are not inadvertently isolated or penalized for violating a publication ban when providing support.
In June 2023, Morrell Andrews addressed the Senate regarding Bill S-12, drawing from our personal experiences to make several recommendations. The bill passed the Senate with a division of votes and underwent its first and second readings in the House of Commons in September 2023.
In October 2023 members from My Voice, My Choice returned to Ottawa for one final, unwavering push for change to Bill S-12 in the hopes that our additional amendments would be adopted into the final version of Bill S-12. Unfortunately we were unsuccessful in getting our amendments adopted, and Bill S-12 was pushed through as-is and became law on October 26th, 2023.
But not all was lost.
The Senate did a great job at hearing most of our concerns from our visit in May 2023. And because of our combined efforts, the following is now law as of October 26th, 2023:
The law now says that if a publication ban has been imposed, the court must, at the first reasonable opportunity, inform the recipient of their right to apply to revoke or vary the order. It is empowering the individual to have a choice in the application of a ban. The courts must take into consideration the victim’s wishes.
The law also requires the court to ask a victim or witness if they wish to be the subject of a publication ban, if they are present in court. If they are not present, the court would be required to inquire of the Crown if they sought out the wishes of the victim or witness.
The law clarifies obligations that the prosecutor has toward the victim or witness with respect to information on their right to seek, revoke or vary a publication ban. The bill would also make important changes to codify and clarify the process for varying or revoking a publication ban once imposed. This new law has also created a new section of the Criminal Code to clarify and streamline the process of seeking to change or revoke a publication ban. If the person who is the subject of the publication ban wants it to be revoked, the court would be required to do so without holding a hearing.
The accused will not have any say in the process of modifying or revoking a publication ban.
The changes make clear that prosecution shall not occur in situations where a person breached their own publication ban, unless they compromised the privacy of another person who is also protected by a ban and where a warning would not be appropriate.
We would like to thank you all for your support over the past year. While these changes aren’t the specific ones we were advocating for, they’re an incredible step in the right direction. Now, after this victory, the team at My Voice, My Choice is hanging up our collective hat. Each and every one of us had our own sagas within the legal system that led us to building this collective in January of 2023, and we are all looking forward to creating new kinds victories within our own personal lives. So this is the last update we will be giving on our webpage, even though we will forever be advocates for freedom of speech, and for the rights of victim-complainants.