JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, May 14, 1998

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[English]

The Vice-Chairman (Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.)): We will reconvene. We have before us Catherine Kane, Counsel of Criminal Law Policy Section of the Department of Justice, and we are dealing with victims. Welcome.

Ms. Catherine Kane (Counsel, Criminal Law Policy Section, Department of Justice): As I understood, this was supposed to be question and answer. I wonder if I could just take two minutes to make a few comments that arose in the context of questions asked of Susanne Dahlin.

The Vice-Chairman (Mr. Paul Forseth): Please do so.

Ms. Catherine Kane: Mr. Bellehumeur has raised the issue of criminal injuries compensation. I thought it might be helpful if I could just provide a bit of background in terms of the federal cost sharing agreement for compensation.

This was the program that the federal government began to cost share in 1973, originally to encourage all provinces to implement similar programs. The cost sharing agreement set out some basic minimum standards that all those programs should meet. Over the course of time all the provinces developed compensation legislation although they did vary in terms of eligibility and compensable damages.

B.C., as you have heard, had a very generous program as have Quebec and Manitoba. The most recent cost sharing agreement was entered into in 1987, but it was a three year agreement with knowledge at the time that at the end of three years it would be terminated.

This was while the government was engaged in reviewing a variety of programs and looking at what the appropriate role of the federal government was vis-à-vis the provision of certain services. As we have heard there has been a considerable amount of debate over what is federal jurisdiction and what is provincial jurisdiction.

Criminal injuries compensation was clearly a provincial jurisdiction. It was very difficult for the Department of Justice to secure funds to support the compensation program on an ongoing basis because questions were raised about the rationale for the federal government spending money in that area.

The cost sharing agreement in 1987 was 25¢ per capita of the provincial population or 50,000, whatever was the greater amount, but not to exceed 50% of the total compensation paid. Over the course of the three year agreement about $9.6 million in federal money was provided. Even with the $9.6 million, that only resulted in about a 15% share from the federal government of the total compensation paid in Canada. In jurisdictions, for example, like B.C.—this is going back to 1992—the federal share was only 7%. The provinces have been able to do these compensation programs basically without a great deal of federal financial assistance.

The cost sharing agreement terminated in 1992. There was a one year extension. At the time we had hoped that some of the federal victim surcharge money might supplement the resources that were not heading to the provinces for compensation.

In addition, a victim's assistance fund was set up of a 10¢ per capita share, also for a time limited basis, to assist the provinces to develop programs and services for victims other than compensation and until such time as the victim surcharge money showed some return to assist them.

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All these programs ended in 1992 and since that time there has not been any federal money for cost sharing of programs.

Mr. Bellehumeur raised the question about maybe our revisiting these programs before we look at spending other money. At this point there is not any money and there has not been since 1992. On the same note he also referred to a federal program for victims.

I do not think at this point in time we are talking about a program that would provide substantial amounts of money. We are talking about something quite modest that would be a complementary federal role. These are the options that we are exploring.

They would not be providing services or providing programs, for example, as described by Susanne in B.C. because these programs exist in all provinces. If we did secure money for new victims initiatives, the goal would be that that money would be sent to the frontlines for victims services and that it would not be to create a huge bureaucracy or to duplicate existing services.

The Vice-Chairman (Mr. Paul Forseth): Go ahead, Ms. Bakopanos.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): I was reading the different models across the country that I think you provided us with, or the clerk did in any case.

Being from Quebec, which I think is a very good model in terms of compensation and in terms of making sure that the victim is part of the whole process, the one area that I find, in also looking through the presentation that was made from B.C., is at the parole stage. I find that is where there is not as much effort made in terms of assuring that victims rights are in fact taken into account at a higher level than perhaps even the fact that the offender has gone through treatment, has gone through rehabilitation.

I do not know how it could be more. Having the victim before the parole board hearing is one way, although some choose not to because they are still traumatized by the whole experience.

Further than that, if the parole board decides to allow the offender to be out on day parole or even supervised parole and if I were the victim, to what extent would I feel secure? To what extent can we as a government do anything better than what we are doing now—again I am using Quebec as an example—to assure the victim feels much more secure?

There is an example actually. We all received a letter from a mother who wrote about her daughter having been raped and burnt. Andrew actually had a copy of the letter but he has left. The parole board is considering allowing this offender, who is a repeat offender, to be out on parole, unsupervised apparently. That decision has not been made; it is being considered.

The mother was appealing to us as members of the justice committee to take into account situations like those because she feels unsafe even though it was not her. She had lived with the offender and he had murdered her daughter.

Perhaps you have some suggestions. I find there is a no man's land in terms of legislation. How do you make sure that the victim or the victim's families or the victim's relatives are all aware that this person is out, especially if he happens to be in a penitentiary which is not necessarily in the same province?

Sometimes that is used as a way of crossing boarders. By the time the whole police system comes into play or the parole system comes into play, they are lost somewhere out there. They may show up at the doorstep of the victim.

I do not have an answer, Catherine, but those are the types of letters we as parliamentarians are also receiving. How do you assure the security of the public or of the victim's family or even children or whatever, all along the line?

Ms. Catherine Kane: It is a very real concern and I do not feel qualified either because parole falls under the responsibility of the solicitor general.

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I do know that they have been having consultations with victims groups to try to enhance victim participation in the parole process. Currently victims are able to submit written material. It is disclosed to the offender, however. They are also allowed, on request generally, to attend as observers at parole hearings.

Certainly safety of the public is the paramount consideration in release decisions, but notification to victims that a person they might not otherwise expect to encounter on the street because they think they are in jail somewhere is a huge problem. That is something that hopefully we can explore with our colleagues at the parole board in terms of perhaps developing a sophisticated notification scheme.

The U.S., for example, has a system for federal victims. They are not necessarily the type of victims you would expect. Victims of bank robbery, interstate issues and whatnot are considered federal victims.

They have what they call a seamless notification system. They do it all on a CD rom. At the first contact with police a whole range of victim information is gathered. As the offender goes through the process, the CD rom goes with him. Each agency provides more information. Then they have basic information about the victim so that they can notify that victim of the status of the investigation, the trial, the sentence, release date and so on.

That would be an option we could try to explore to see if we could have something that would get you from beginning to end so that victims would know where things are at, when they might encounter the person on street, and what options they have available to them to ensure their own protection. If they are still in fear they would know, for example, who to contact immediately and that when they contacted 911 they would be taken very seriously that somebody might be stalking them, or that they may fear that was happening.

Mr. Chuck Cadman (Surrey North, Ref.): I will just put on my other hat. To me this is the importance of victims being able to appear at a parole board to actually make an oral statement to the parole board.

It is one thing for us to get these letters. We can sense that. It is one thing for the parole board to get the letters. However it is a whole different thing when a victim is actually standing before the parole board and the fear that is there can be felt. That would enable the parole board to make that kind of decision.

We can legislate all we want, but I think the key is for the parole board to be aware of the victim's concern. That is one good reason for having oral impact statements.

If I could cite one example in terms of myself, there was a case where two women were killed out in B.C. The families are good friends of ours now. They got notice that the offender was to be released into a work release program out of Sumas in Abbotsford.

As soon as they got notice they realized right away there was a problem. They phoned the parole board right away and said “You can't do this because Lorrie's children lived in Abbotsford and one them actually witnessed the murder”. To its credit the parole board axed it right there. The offender was not too pleased with it, but I am just saying the system can work at times.

I go back to my statement about impact statements. I think that is a place where it can be addressed.

Ms. Eleni Bakopanos: In proviso the victim has to want to do that.

Mr. Chuck Cadman: Absolutely.

Ms. Eleni Bakopanos: A lot of them are totally traumatized and cannot do that. That cannot be legislated, in a way.

Mr. Chuck Cadman: No, and I agree that the victim has to request the information. You cannot force that.

Ms. Eleni Bakopanos: I also wanted to ask, because it was brought up by the B.C. representative also, about monitoring for family violence and stalking cases.

It is a new program which was also in fact used in Quebec. It has been quite successful actually in terms of advising in most cases the woman whether her ex-spouse or the person she was living with is in fact out on bail or has fulfilled his obligations in terms of paying a debt to society.

The problem is the costs again, and Mr. Bellehumeur did bring them up.

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Do you think that we should be funding these types of programs, maybe not under a victims thing, but maybe under a crime prevention initiative, in the sense of using some of the money that we have in crime prevention to assist in setting up more of those programs? Because they seem to be very effective. The B.C. representative said the same thing. I know that in Quebec the police really feel that it is a very good tool.

Ms. Catherine Kane: I think it is worth exploring. As you know, the crime prevention strategy has a criteria for what can be funded. But certainly it includes crime prevention and re-victimization. My colleagues who are working in crime prevention and I have discussed the need to liaise on an ongoing basis to make sure that their crime prevention initiatives are in sync with enhancing protection for victims, particularly re-victimization. You don't want to be victimized even once. Unfortunately, there seems to be a greater instance of re-victimization in certain crimes. That would be a very good idea.

To relate back to your earlier question with respect to parole, I think a related issue is that many victims don't realize when an offender is sentenced what the sentence actually means. They are quite surprised when they find that the offender is now eligible for some type of release, or that he is going to be automatically released.

Colleagues at the Solicitor General have developed a pamphlet on sentence calculation. They had originally done it for judges. The judges' version is very complicated. They are now working on a version for non-judges, which is still quite complicated.

I think it would be a very good resource for victim services units to give out, so that people know. Then somebody could take that and say this specific sentence means that even though he has a six year sentence, he may be eligible at the end of two years or three years, or whatever, and for what. So they are at least aware of what they face. Similarly, in offences involving life sentences, what does a life sentence really mean?

All of that comes back to the need to provide victims with increased information about the criminal justice system in general and then about their specific case.

Ms. Eleni Bakopanos: Great. I think that is a great initiative.

The Vice-Chair (Mr. Paul Forseth): Are there any further questions?

Mr. John McKay (Scarborough East, Lib.): I asked a series of question of Ms. Dahlin concerning pushing the envelope with respect to where victims could or should be involved in the decision points of the criminal trial process.

You were present when I asked those questions.

Do you have a similar response to that? Or are you of the view that the role of victims could be enhanced at certain decision making points in the criminal trial process?

Ms. Catherine Kane: Your question was originally: Should their participation be mandated? I would see difficulties with that type of approach.

Certainly, some victims want to be closely involved in all decisions. Others do not. Often it depends on the nature of the crime. It also involves the role of the crown. The crown has duties as an officer of the court. They have to assess the evidence that is going to be admissible, whether there is a reasonable likelihood of conviction, for example, on particular charges. A whole range of factors have to be taken into account.

Often a victim is very dissatisfied with the charge that a crown proceeds with, but often that dissatisfaction could be alleviated with greater explanation. There is a need to explain, and not necessarily consult, because consult suggests that you are going to take their views into account.

But to have some opportunity to say “Here are the considerations that go into the charging decision”, the election of whether it is summary or indictable and so on, would go a long way to make the victims feel more involved in the process.

I think many crown attorneys would like to do that, but they have enormous workloads, so often the middle man is the crown-based victims services. They can provide that explanation. They can be the liaison between the crown and the victim, where the crown can't do it personally.

Certainly in serious offences, I think, crowns now make great efforts to explain as much as they can to the victim about every aspect; not just the charge, but when certain proceedings arise within the course of the trial. For example, what is the purpose of the preliminary inquiry? Why was this the result? Various motions are made. They would like to provide this information because, certainly, if the victim is going to be a witness, they need that testimony and they need the victim to be comfortable with the testimony.

That is where victims' witness services really come into play. The more that they can be enhanced, the better it will be for the victim and for the criminal justice system.

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Mr. John McKay: Would it be your view that this committee could do something useful in that area beyond, if you will, a bland statement saying it would be a really nice thing if crowns involved victims more in those decision making points?

Ms. Catherine Kane: It is difficult to legislate how the crown should behave.

Mr. John McKay: Yes.

Ms. Catherine Kane: I mean, there are certain areas that could be enhanced, such as the victim impact statement. We could have stronger victim impact statement legislation because currently it is sort of the only vehicle that formally permits victim involvement at sentencing. It has been pointed out that it doesn't do much to have that in the code if people are not aware that it is in the code. So perhaps we could explore whether there should be an obligation on the court or the crown to inform the victim of the opportunity to make a victim impact statement.

Mr. John McKay: Your view would be that the area of the victim impact statement is an area that this committee could usefully explore and make a more forceful document, and move it beyond merely a statement of “What happened to me” to something with respect to “I was involved or not involved at the point of decision making with respect to how the trial is conducted”.

Ms. Catherine Kane: No, I wouldn't go that far.

Mr. John McKay: You wouldn't go that far?

Ms. Catherine Kane: No, I think the victim impact statement can only legitimately remain as “What is the impact of the crime on me”. But that in itself is an opportunity for the court to fully understand how the victim has been affected by the whole process. I mean, it could include the impact of the trial process on the victim also—

Mr. John McKay: Yes.

Ms. Catherine Kane: —but not in terms of “I didn't get consulted about the initial charges that were laid”. That would be an issue that you would raise with the local crown attorney, if you felt you had not been dealt with in accordance with—

For example, if we could enhance the Canadian statement of basic principles and have that as a more living document.

Mr. John McKay: Would you include any opportunity for victims to discuss in writing how they feel they have been treated by the criminal justice system?

Ms. Catherine Kane: Where would you see that information being delivered?

Mr. John McKay: What I am doing is exploring the edges of what you want in your victim impact statement. The victim impact statement at this point is limited to the impact of the crime on the individual at the point of sentence.

Ms. Catherine Kane: Right.

Mr. John McKay: Really, that is all it is used for, and Mr. Cadman's area is to push it with respect to release points as well.

But in some respects that leaves silent the entire area of how the victims feel they are treated by the police, how they are treated by the crown, how they are treated by the administrative process, their access to where things are at. As I listen to the testimony, I hear some angst about the victim's treatment in that entire area. Is that an area in which this committee should push?

Ms. Catherine Kane: Some of that is dealt with in existing provincial legislation, for example, in B.C., as has been described. Also, legislation has just been tabled in Manitoba. Alberta has a process for, I will call it a “complaints mechanism”, where people who feel that they haven't been dealt with in accordance with the principles of their provincial legislation can go. They generally include how the crown should treat the victim, the information that should have been provided by the police or by the crown, information about release dates and so on. There is a process spelled out in terms of who to raise those issues with and what their response should be.

For example, in Alberta the director can make an inquiry in terms of what happened. If it concerns the crown's behaviour or practices, the matter is brought to the attention of, first of all, the crown attorney for the jurisdiction and, if it has to be at a higher level, then ultimately the deputy attorney general.

Mr. John McKay: Is it a useful area for this committee to attempt to give a standardization or a minimum standardization with respect to those kinds of statements across the nation?

Ms. Catherine Kane: I think you could make a recommendation that that might be an approach that the provinces want to pursue, but I don't know how we could do that federally because so much of that concerns matters of the administration of justice which are provincial responsibilities.

Mr. John McKay: But it does give us a benchmark, it gives us a bit of a standard, so that communities and provincial systems of justice can meet certain standards.

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Ms. Catherine Kane: Yes. We have, as you know, the Canadian statement of basic principles of justice for victims of crime, that victims should be treated with respect and so on.

Mr. John McKay: I know, but it is all airy-fairy stuff, with all due respect.

Ms. Catherine Kane: It is very vague, yes. But that could be redrafted as a statement of policy or as a guide for policy for legislatures to move toward, and some of them I think are already there in terms of assigning responsibility to particular criminal justice system personnel, in terms of how they deal with the victim and—

Mr. John McKay: B.C. sounded like they are fairly advanced in that area.

Ms. Catherine Kane: Yes, indeed they are.

Mr. John McKay: I find this area a little fuzzy, shall we say, and I am trying to find areas where this committee can usefully make recommendations, usefully explore, and stay away from material that reads well but is of minimal usefulness to people.

Ms. Catherine Kane: I appreciate the concern, and that is something that we have been grappling with, what is the appropriate federal role given the split in jurisdiction. We certainly don't want to legislate anything that will be completely meaningless.

Mr. John McKay: The next point has to do with your initial testimony this morning with respect to compensation. Generally, there are provincially run compensation schemes and a little bit of federal money is thrown in. That is the way I understand the summary of your testimony.

Is there a good reason to set up a federal compensation scheme, either parallel or in lieu of provincial schemes?

Ms. Catherine Kane: Currently the provincial compensation schemes compensate people who have been victimized by Criminal Code offences.

Mr. John McKay: Yes.

Ms. Catherine Kane: Were we to consider a federal compensation scheme, I would imagine that the provinces would say “We won't do it any more”, because then they would save themselves considerable amounts of money.

Mr. John McKay: Right. But, in principle, is there a better reason to do that federally than provincially?

Ms. Catherine Kane: I don't believe so. First of all, I don't think we would be able to secure sufficient funds. You have heard that the B.C. program spends $20 million. Quebec spends a bit more than that, I believe. Ontario has spent about $10 million recently, and similarly Manitoba. I mean, these are huge amounts of money.

Unless we had a very focused scheme available for victims, where all else had failed, where they weren't entitled to anything else, or based on need, or whatever, we would be looking at enormous amounts of money which may be better spent on services for those victims of crime rather than putting money in their pockets.

Certainly that was one of the considerations when the cost-sharing agreement was being reviewed, that there may be better uses for that money. Many provinces have already identified the need to enhance services rather than giving nominal compensation to a wide range of victims.

The other consideration would be whether we could justify that as an appropriate use of federal spending power, given that it is an administration of justice issue.

Mr. John McKay: The compensation numbers in Ontario, I think, are $5,000 and $9,000. It is not very much money. I think that is correct. And I am assuming the other provinces are, similarly, pretty low funding—

Ms. Catherine Kane: Yes, pretty low. There is a great deal of variation, though, among programs, and some do award amounts for pain and suffering, others don't. Some provide periodic payments over the course of several years. Others provide a lump sum and you do with it what you can and that is the end of it.

Mr. John McKay: Is there any area to explore with respect to obtaining meaningful compensation for victims whose perpetrators have accessible assets? Are there impediments in the legislation that could be explored where that could be done?

Mr. Forseth was exploring the area of discharges from bankruptcy. I was playing around with areas of speaking to the crown on priorities for secured or unsecured creditors, or things of that nature. Is there an area of thinking that could be done by this committee that would be useful in that area?

Ms. Catherine Kane: The compensation programs are basically relied on when a victim of crime doesn't want to pursue their civil remedies.

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If an offender had assets, the best advice would be for that victim to sue that offender civilly and get a judgment. When you say meaningful compensation, that would be sort of the benchmark for meaningful compensation, what a court would order for damages, loss of income, pain and suffering now and into the future. You could get a significant judgment.

Whether that is enforceable, and the frustration a victim goes through in terms of trying to enforce that is another issue. You would have the full arsenal of all the civil remedies at your disposal.

Mr. John McKay: Would it be useful to explore the area of providing legal counsel to pursue that lawsuit?

Ms. Catherine Kane: It would be certainly a benefit to many victims who could not otherwise afford counsel to be able to pursue their civil remedies. I imagine other people would argue that they should be entitled to legal counsel also even though they are not victimized by crime but feel they are.

Mr. John McKay: You may be opening another set of issues. If I am a victim and I have the criminal aspects done with and go to the compensation board, my choice is do I take the $5,000 or do I start a lawsuit. I look to my spouse and say how are we going to start a lawsuit because the retainer for the lawyer is $10,000. It is not a meaningful choice. In some respects all we do is insult the victim once again.

So absent the issue of what other issues we might open up by doing that, is that area useful to explore?

Ms. Catherine Kane: Given that the provision of legal aid, if it is analogous, is also basically a provincial responsibility, we would be suggesting that the provinces be absorbing the cost for that counsel unless we were to secure federal money to cost share or contribute to that sort of a fund.

I think victims would agree that would be worth exploring. They would also probably want counsel for a variety of other issues, not just their civil remedies, but many feel that in the criminal process they don't have anybody on their side.

Mr. John McKay: B.C. people provide independent legal representation in the process—

Ms. Catherine Kane: For applications for records and sexual offence proceedings it is a particular motion that may arise in the course of the prosecution of a sexual offence where the accused wants the medical, therapeutic or counselling records.

Mr. John McKay: That's a very narrow thing.

Ms. Catherine Kane: It's not so narrow. It is a big problem because that is a key area where complainants do need independent legal representation and B.C. has taken the lead in setting that out in legislation. Manitoba has also included that provision in its new legislation also to provide legal representation.

But other situations arise where victims have said they need legal representation and it is not available to them under the legal aid plans because they are not charged with any offence. Where publication bans may be sought, often the victim's perspective is different from the crown's, certainly different from the defence perspective, and they feel the need for independent representation. In other sexual offence proceedings, the one that comes to mind is where the accused wants to ask questions about previous sexual activity and there is an application to produce that evidence. The victim may feel they should have independent representation there.

It will lead to more general needs for victim counsel, but certainly that should not deter the committee from exploring it.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Mr. Chairman, I want to ask about the field of federal and provincial privacy legislation from the perspective of the victims.

Has anyone to your knowledge or any government reviewed the parameters and extent of the impacts of privacy legislation on victim focused initiatives, whether at the trial stage, the sentencing stage or the custody and release and parole stages of the offender? My impression is that there are overlays and templates put in place by privacy legislation, federally and provincially, which would block and impair some initiatives on the part of the victim or victims at various points in that long list of procedures.

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Ms. Catherine Kane: To date I have not examined privacy legislation to inform myself of what the limits might be, but with every initiative that we might be contemplating we would have to consider whether we were restricted in any way by the privacy legislation.

There is no intention to pursue anything that would impact on the rights of the offender. I think the minister has made it clear that we are looking to better balance the rights of the offender and the rights of the victim. Victims groups themselves are quick to point out they do not want to take away the rights of the offender, they just want to make sure that their participation is enhanced in the process and that they are considered and treated appropriately.

We would not try to be delving into areas where we might be coming up against the privacy act.

Mr. Derek Lee: I agree there is no cause for a victim to want to reduce the rights to privacy that a convicted offender might have generally if that information was not relevant to the victim's needs.

I believe under the legislation someone's age is personal information. In theory a convicted offender's age is personal information and non-disclosable. My reaction to that is this is an inappropriate extent of privacy protection in the context. Of course I am making an assumption that the age of the convicted offender is relevant in some way to the reintegration or the circumstances of the victim.

You have not encountered privacy legislation as an impediment to victim advocacy and victim needs in the process.

Ms. Catherine Kane: I restrict my answer to the context of our review of what we might be able to do under the Criminal Code of Canada. Colleagues at the correctional service and the parole board who are looking at victim involvement in that process may well have encountered impediments of the privacy act.

They have set out in their legislation under the CCRA the information they provide to a victim. I believe that includes the name of the offender, where he is incarcerated and so on. I do not know about age.

It is subject to a certain limitation. There is a balancing of the privacy rights of the offender and public safety and so on. But in our review of the Criminal Code and what it might do, so far we have not.

The Vice-Chair (Paul E. Forseth): You heard testimony from British Columbia, the issue of money available as a surcharge on the provincial side. When we talk about services it seems to always come down to money.

Do you have any further comments about the lack of money coming from the federal side where an order has to be made?

Ms.Catherine Kane: Some clarification about the victim fine surcharge. In the Criminal Code there is a mandatory provision that says the judge in sentencing an offender must add on this monetary penalty known as the victim fine surcharge. That money is to be used for the provision of assistance to victims of crime as directed by the province.

So the money stays in the province, just as a fine would under the Criminal Code, and it is supposed to be in a special account to provide services to victims of crime.

The way the code reads currently, it permits regulations to be made to fix the amount of the surcharge. When the code provision is read together with the legislation the resulting scheme is that where an offender is sentenced to a fine, the surcharge is up to 15% of the fine and where the disposition is other than a fine, it is an amount up to $35.

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We are not talking about major amounts. That was agreed to following several years of consultation with the provinces where we looked at the pros and cons of big discretion on the part of the sentencing judge to impose a surcharge versus the nominal amount they might more readily impose and that maybe more readily collectable.

It was apparent early on that the surcharge was not raising the types of revenue we had anticipated it would for the province and this was due to a couple of factors. Often the judges, even though it is a mandatory surcharge, were waiving its imposition due to the undue hardship it may impose on an offender.

They would size up the offender's financial circumstances and deem that it was not worth imposing the surcharge, that it would cause undue hardship to him or her and hence no surcharge would be imposed, or some lesser amount would be imposed because the 15% was deemed too high based on financial circumstances, or that $35 was too high.

So the amounts to be collected were lower than anticipated and on the other side of that there have not been major efforts made in some jurisdictions to collect the surcharge.

Those two factors account for the low rates. B.C. said $100,000. I think we had estimated that B.C. should be collecting $6 million or $7 million in surcharge revenue annually, assuming an average default rate and an average imposition rate.

Right across the country a similar pattern has emerged. Some provinces do better than others in collecting federal surcharge but generally it has not achieved the amounts that were estimated. We have made commitments to the provinces since about 1992 that we were prepared to revisit the surcharge amounts and we have never reached any sort of consensus on what those should be. The minister has recently said she is still prepared to pursue amendments to the surcharge provisions.

Many of our provincial colleagues have suggested it should be an automatic to avoid the possibility that judges would waive it. It should be automatically imposed without requiring the judge to turn his mind to it. That option raises some concerns from a charter perspective because the accused may not be aware that a surcharge has been imposed or that he could make submissions with respect to the hardship that would impose on him.

We have several other options we would like to pursue to enhance surcharge revenue. The other consideration is that if judges were made more aware of the good services provided with surcharge revenue they might more readily impose them.

For jurisdictions that have made efforts to advise the judiciary of the services provided in this province that rely on victim surcharges, this tends to enhance judges' acceptance of the need to impose the surcharge.

Mr. John Maloney (Erie—Lincoln, Lib.): Should the victim be informed, be consulted, and I draw a distinction, or consent to a plea bargain?

Ms. Catherine Kane: The crown responsible for the prosecution of the case has to assess the likelihood of a conviction on a particular charge, whether the evidence supports the charge. I am not a crown attorney and so you may want to pose the same question to some of the provincial attorney general officials if they appear before the committee.

I agree that victims certainly feel the need for the plea agreement to be explained to the, why the crown is considering accepting a plea to a lesser or included offence, and there should be some opportunity to discuss that with the victim.

I don't think it is feasible to permit the victim to consent to a plea bargain because there are so many factors that have to be considered by the crown in terms of proceeding with the charge.

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However, more explanation to victims about why it might be perhaps in their interest to avoid a trial or whatever would go along way to address victims' concerns about negotiated pleas.

Mr. John Maloney: Should victims who sit in court, not on your regular shoplifting charge but serious business like murder or sexual assault, et cetera, be given a fee like a witness fee to attend a trial? Some trials go on for weeks or months.

If there is a change of venue, should they be compensated for accommodation or transportation expenses? How far do we go?

Ms. Catherine Kane: That is a very good question and one that we have not very carefully explored.

Certainly with respect to changes of venue we know that victims incur lost income from their jobs, expenses for hotel and other incidental expenses to attend the trial. I do not know how provincial attorneys general departments deal with those expenses, whether or not they are compensated for them.

Currently witness fees are very low. They do not really cover true costs. That is an issue we could explore with our colleagues through the network of directors of victims services and provincial officials.

If we had any federal resources available perhaps we could facilitate the provision of cost recovery for some of those expenses, particularly changes of venue because they do not arise all that often. Currently I do not know how that is addressed.

Mr. John Maloney: Would there be a certain category of offence that we may apply this to or suggest that it be applied to, or all offences?

Ms. Catherine Kane: So much would depend on the estimates of the cost for that kind of program. When they arise now in various provinces often they are dealt with sort of on an ad hoc basis based on the specific circumstances of the case.

Where a change of venue is ordered to address the inability to perhaps select a jury in a particular community, and it is in the best interest of the administration of justice to move the trial, certainly that would be a case which would dictate that some compensation be provided. However there may have to be a test crafted for when those expenses would be compensable.

The Vice-Chairman (Mr. Paul Forseth): Mrs. Finestone.

Mme Sheila Finestone (Mount Royal, Lib.): When called as witnesses—and I can only speak for complaints from my own constituents who have been called as witnesses—they can lose days and days from work. Is the decision as to whether or not the witness is compensated, depending on the nature of the crime, a federal responsibility or is it always provincial responsibility?

Ms. Catherine Kane: In a case that is prosecuted provincially, a Criminal Code prosecution in any of the provinces, for example, it is a provincial responsibility.

Mme Sheila Finestone: The remuneration or the amount of recompense for the days spent would be a provincial responsibility.

Ms. Catherine Kane: That's correct.

Mme Sheila Finestone: What was that thing called, a superfine or something or other?

Ms. Catherine Kane: A surcharge.

Mme Sheila Finestone: It should be a superfine. Is the surcharge used to pay these witnesses?

Ms. Catherine Kane: No, the surcharge—

Mme Sheila Finestone: Could you categorize for us, or define if you know, what that amount of money is used for specifically? You said that when judges know the services for which they are collected it would be more prone to apply.

Ms. Catherine Kane: Currently the regime is that the surcharge goes into a special fund in the province. Most provinces refer to it as the victims assistance fund. They include in that fund their own surcharge on provincial offences and the surcharge collected on Criminal Code offences.

The Criminal Code provision specifies in a general way that revenue is to be used to provide assistance to victims of crime. It does not say what specific assistance. There is no requirement for the province to later detail for the federal government what they have used the revenue for, but all the provinces can certainly point to countless services they provide with revenue from their victims assistance fund, which is a blending of the two surcharges.

Mme Sheila Finestone: Like what, for instance?

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Ms. Catherine Kane: Transition houses for battered women, victim witness services in police stations, victims services in crown offices, special victims services for sexual assault victims, child abuse victims, and so on.

On criminal injuries compensation they could account for that money 100 times over. There is certainly no doubt in my mind that the victim surcharge money is indeed spent for victims services.

When I indicated that making judges better aware of what surcharge money is used for, this suggestion was made in some research the Department of Justice had done in 1993-94 in terms of raising awareness about the surcharge.

Some of the judges interviewed had reservations about imposing the surcharge because they did not know exactly where the revenue was to be used, but once they were advised of services in their own community that were funded in whole or in part from surcharge money, their acceptance of the surcharge as a means to fund those services was raised.

Mme Sheila Finestone: First, on the recommendation of this committee would a list be provided as an obligation?

Second, when a trial is moved, should there be an indication that remuneration for the displacement costs could be considered part of the victims services?

Third, is the payment of witnesses who testify included in the charge?

Ms. Catherine Kane: I do not believe that witness services are considered to be of an appropriate expenditure from a victims assistance fund because many witnesses are not victims.

Mme Sheila Finestone: How does the victim get a proper hearing in the court if the witnesses are not heard?

Ms. Catherine Kane: The witnesses will be heard. If they are summoned to attend, they will attend and they will get the witness fees set out in the governing provincial legislation. Many of the witnesses are not victims of crime.

Mme Sheila Finestone: I realize that.

Ms. Catherine Kane: There are competing priorities for the very limited resources available to assist victims. That would be a consideration. The expenditure of surcharge money is completely within the discretion of the province.

Mme Sheila Finestone: Did you say in your first response that it was approximately $35 and that it added up to somewhere around $3 million in British Columbia?

Ms. Catherine Kane: No.

Mme Sheila Finestone: It sounds like an awful lot of cases.

Ms. Catherine Kane: No. I said that Susanne Dahlin indicated this morning that British Columbia had collected only about $100,000 in one year based on the federal surcharge.

The Criminal Code specifies that the amount of the surcharge is up to 15% of a fine or up to $35 when the disposition is something other than a fine.

You could have an offender sentenced to jail and the surcharge could be $35, or the judge could say that he does not think the offender has the means to pay $35 so it will be $10 or nothing because he has no ability to pay.

Mme Sheila Finestone: Or, it could be thousands of dollars if they were wealthy.

Ms. Catherine Kane: No, it cannot be thousands of dollars if they are wealthy because the legislation says that it is up to 15% of a fine or up to $35. That is the top limit.

Mme Sheila Finestone: I have one last question if I may. With respect to awards for an offence committed and declared to have taken place, is compensation asked of the offender that would take into account the degree of disability the victim suffered, or is that left to a Canada pension plan disability payment?

Is there any kind of rule of thumb, seeing as how I am neither a lawyer nor a prosecutor and have never really been at a court case? Does it take into account the degree of disability, the degree of psychological, social or physical debilitation as a result of the crime?

Ms. Catherine Kane: Are you referring to what the criminal court can order as part an offender's sentence?

Mme Sheila Finestone: The criminal court.

Ms. Catherine Kane: The criminal court—

Mme Sheila Finestone: Excuse me, but the criminal court is the jurisdiction of the federal government, so we cannot—

Ms. Catherine Kane: That's right. The provisions in the Criminal Code that govern what you are referring to are the restitution provisions. They are very limited because under federal jurisdiction we are restricted to addressing matters of sentencing under the criminal law power.

The code provision makes it clear that the court can only award as restitution readily ascertainable damages for loss of income that arose as a result of a crime or for expenses actually incurred for loss of or damage to property. There cannot be any awards made under the restitution provisions for pain and suffering or long term disability. What the restitution provisions can address is quite restricted.

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Those matters that you referred to such as long term disability would be the subject of a civil suit by the victim against the offender, and if the offender had the ability to pay that would be the best recourse.

Mme Sheila Finestone: Does the civil suit have to be heard following the criminal case and the finding of guilt?

Ms. Catherine Kane: No, it does not have to be heard following. It could be simultaneously or it could even be before, depending on the different standards of proof completely.

You may have an offender who is not convicted of the offence of assault, for example, but in the civil trial it is a balance of probabilities and standard of proof and in the civil trial a court may find that the defendant was indeed responsible for the injuries. He could be found liable even though he was not convicted of the criminal offence.

Mme Sheila Finestone: Where it is property rather than personal injury, the recovery of the goods for the sale of the goods recovered, where does that money get distributed?

Does it go to victims services? Does it go under the general revenues of the country? Does it go into provincial services? Where does it go?

Ms. Catherine Kane: Are you referring to proceeds of crime?

Mme Sheila Finestone: Yes. I know we burn the hash and everything else. It is sometimes stupid, but anyhow stolen merchandise of a substantial worth, is it sold? Is it returned? What happens to the recovered goods?

Ms. Catherine Kane: If it is recovered it is returned to the victim.

Mme Sheila Finestone: To the victim.

Ms. Catherine Kane: If it is recovered in a usable manner. If it is recovered and it has been destroyed, the court can order compensation for the value of the property.

Mme Sheila Finestone: I had another idea but I cannot remember what it was. Thank you very much.

The Vice-Chairman (Mr. Paul Forseth): Perhaps I could just add that, for instance, the most popular auction in Vancouver is the Vancouver city police auction with all kinds of recovered goods that they cannot attach to any particular victim.

Mme Sheila Finestone: There are bicycles, motorcycles, cars.

The Vice-Chairman (Mr. Paul Forseth): Does anyone else at the table have a question?

Mr. Chuck Cadman: I just wanted to mention one thing.

The Vice-Chairman (Mr. Paul Forseth): Go ahead, Mr. Cadman.

Mr. Chuck Cadman: This is going back to Mr. McKay's line of questioning on criminal injuries compensation. This is more of a comment than it is a question.

The whole thought of going through a civil action for a victim of crime, particularly a violent crime and more particularly the survivors of a violent crime vis-à-vis a murder, I would like to see criminal injuries compensation dealing with out of pocket expenses as opposed to pain and suffering.

I have known people who have not been able to work for six months or years afterward. They are out of pocket because their benefit packages do not cover it or anything. They have no income and there are funeral expenses to be dealt with. To ask somebody to pursue that through the civil courts could take years before you get a decision.

Basically that comes down to revictimization. I have no problem dealing with the civil courts on pain and suffering. To me that is a whole other issue. I just wanted to put that on the record.

Another thing Mr. McKay was talking about was notification responsibility of the crown and responsibility of the police. If anybody is interested, I have private member's Bill C-294 which addresses that. I do not know whether the department has looked at it. I have probably blown every chance I had of getting it votable now. It was introduced by one of your colleagues, Mr. Mitchell in the last parliament. I have reworked it and put in a few extra things.

Mme Sheila Finestone: Did you get copyright?

Mr. Chuck Cadman: You might want to take a look at it because it addresses all those issues. Thank you, Mr. Chair.

Mme Sheila Finestone: The privacy question was asked by you, Derek.

Mr. Derek Lee: Yes.

Mme Sheila Finestone: Were you satisfied with the answer?

Mr. Derek Lee: Yes, I think so. I was looking for any rough edges or problems with it and Ms. Kane indicated there were not any prominent or obvious conflict areas. I think that was the answer.

Mme Sheila Finestone: Have you checked that with the privacy commissioner?

Ms. Catherine Kane: My answer was that in the options we have explored to date we have not encountered any.

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If you could provide me with an example of what you think might come up against privacy concerns I might be better able to answer the question. But certainly to date in terms of looking at criminal perhaps options for amendments to the Criminal Code, we do not intend to infringe on any aspects of the Privacy Act.

Mme Sheila Finestone: That was why I am asking that question. I don't think in light of that we should be asked to do that. In light of the fact that we have an extremely competent privacy commissioner with many years of history now in the application of the Privacy Act, the automatic consultation of the privacy commissioner should be as a matter of course.

Has the privacy commissioner been asked to look at the Criminal Code? Has he asked specifically if there are concerns around privacy rights, be they the offender, the victim or any of the witnesses?

Ms. Catherine Kane: We have not asked the privacy commissioner to examine the Criminal Code.

I assume that if the privacy commissioner had seen issues before this committee in terms of amendments that have been passed in recent years or existing provisions of the Criminal Code that caused problems, they would have been brought to the minister's attention.

Certainly if we are pursuing any amendments to the Criminal Code we would be very alive to whether there were implications with respect to the Privacy Act. But currently we are not at that point.

Mme Sheila Finestone: Mr. Chair, I would really like to have a letter go to the privacy commissioner to find out whether he would see it within his jurisdiction and needed responsibility to review, if we are going to be looking at victims rights, if there is anything we should be concerned about in the field of privacy.

Ms. Catherine Kane: Someone was sitting in the day before yesterday in these hearings from the office of the privacy commissioner, so they are aware of the committee's review of this issue.

Mme Sheila Finestone: Then they will be very receptive to our letter, I'm sure.

The Vice-Chairman (Mr. Paul Forseth): Quite a few times you referred to possible amendments to the Criminal Code. I wonder if you could in a general sense make a run down of areas where there could be amendments the committee could examine under the guise of one way of providing a bottom line or a national standard. You mentioned improvements to the victim impact statement section. What about the principles of sentencing?

I understand there is to be a federal-provincial meeting of officials in June. Perhaps you could in a general sense talk about some of the topic areas that may be at play there?

Ms. Catherine Kane: With respect to Criminal Code amendments, several had been identified by the federal-provincial working group on victims of crime, including the need to amend the victim fine surcharge provision, victim impact statement enhancements and a suggestion that we look at expanding publication ban provisions in the Criminal Code.

In the letter the minister wrote to the committee she also alluded to some other areas we would seek the guidance of the committee on and would like to explore provisions to facilitate the provision of testimony by witnesses, the provision of information in general to victims of crime. Whether that is appropriate to be included in the Criminal Code remains to be debated.

There are other provisions, and this is just an idea at this point, such as extending victim impact statement provisions to other proceedings such as where a verdict of not criminally responsible by reason of mental disorder has been the verdict. Currently that would not be a sentence, so there would not be a victim impact statement.

Whether there should be any sort of codified obligation to advise the victim of their opportunity to prepare a victim impact statement could also be explored.

With respect to the agenda for the meeting in June, our working group has now had the benefit of being two groups in one. There are the directors of victim services from all jurisdictions and other policy officials from the provinces, me and some colleagues from solicitor general.

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The agenda is very long. Usually it begins with a round table of emerging issues in all the jurisdictions, any new services or programs developed and an opportunity to share information about how certain concerns are being addressed.

There is a session on initiatives for sexual offence victims and the impact of applications for production of records. There is a session on domestic violence initiatives. Several provinces now have provincial domestic violence legislation. It is an opportunity to get up to speed on that legislation and on victim services in general, what are the issues confronting victim services, funding issues, and some of the outstanding issues from our working group report in December. It will be provided to all members of the committee for background information.

Research priorities have been identified. All jurisdictions feel they could benefit from research on what is happening in each jurisdiction with respect to victim impact statements.

I do not mean what the legislation says but what is actually happening in the courtrooms, are victims satisfied with this, that sort of information, and what are the better ways to collect victim fine surcharges and so on. It is quite a huge agenda.

There are also some issues that I am not at liberty to disclose. Perhaps afterwards I would be happy to report back.

Mme Sheila Finestone: You are very knowledgeable. It is a pleasure to listen to you.

For people with disabilities, in terms of writing victim impact statement or presenting it if that is their wish, and I hope they would be asked what way they would like to appear, can they write it in Braille, can they dictate it if they cannot write, can they make an oral presentation? What are the accommodations for people who are poor sighted, who have hearing or speech disabilities? Are there interpreters in the court? What is the impact with respect to language as well?

Ms. Catherine Kane: That's a very good question. The judge has the complete discretion to permit whatever accommodation has to be made to properly receive a victim impact statement. Currently that is not set out in the Criminal Code. The Criminal Code does not say a judge has to permit the victim impact statement to be provided in whatever means the victim is capable of providing it.

It is rather restricted. It says the victim impact statement is in a form approved by the lieutenant governor in council of the province. You could have a particular form or practice in Ontario that differs from the form or practice in Quebec or Manitoba, for example.

You could have a situation where that designated program says it's this form and that's all it is, it's fill in the blanks. Even in provinces where that is the case, we have known of many cases where the judge has been quite amenable to other forms of victim impact statement being provided.

I could not say it is guaranteed that a victim with a disability could use Braille or a video or whatever. It would be within the discretion of the judge.

Mme Sheila Finestone: Mr. Chairman, I wonder if when the committee studies victimization and the victim impact issue if at some point we might not be able to join with our provincial colleagues. I often think of the three levels of responsibility in a democracy being the judiciary, the executive and parliamentarians.

Parliamentarians at both levels of government could get together to discuss these issues because the effect and the impact can be made only at the provincial level. It would take the parliamentarians at the provincial level.

It is fine to have the FPT, the bureaucrats meeting to determine and to evaluate. It is fine for the ministers. In the final analysis, if parliamentarians do or do not agree, the executive committee can have a very difficult time. We have lived through that a few times.

It would be very interesting to try to give some consideration as we visit each province to look at the provincial jurisdiction together with our colleagues at the provincial level.

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Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.): The other night I was in the riding of Toronto Centre—Rosedale and I met with a community group in an intercity neighbourhood. With the help of their former MPP Tim Murphy, they had studied a very serious problem they have with prostitution and drug trafficking.

They banded together and decided they would attempt to make community impact statements at provincial court or at whatever level of court when these cases were being prosecuted. It has been a tremendously successful program.

I was so impressed with this community group but it occurred to me that what we are looking at when we talk to groups like that is the community is a victim of crimes that the rest of don't maybe see or worry about as much because they are not prevalent. You don't have necessarily kids addicted to cocaine, hooking on the streets in rural areas or in so-called better neighbourhoods. But there are parts of our country where this is a problem. We tend sometimes to think of them as victimless crimes but in fact the community is the victim.

Mme Sheila Finestone: Vancouver is a perfect example.

Ms. Shaughnessy Cohen: Yes. I am talking to the converted over here. Has the department taken a look at this idea of the community as a victim and is it something that in your view would be helpful for us to study, not necessarily in this current study we are undertaking but at a future point?

Ms. Catherine Kane: We have not closely examined that, although I am aware of community impact panels having a positive impact on outcomes and making people feel they are part of the whole process, especially in victimless crimes where you would not be able to identify who might make the victim impact statement to the court.

It is certainly worth considering because it is a great avenue to make people feel they are part of the criminal justice system and finding solutions to what is affecting their community. It is also crime prevention to a certain extent.

They can see a problem in their own community and discuss it with a view obviously in terms of sentencing an offender but also with a view to having it stop.

Ms. Shaughnessy Cohen: I was so impressed with them. The MPP, who is not there anymore but who initiated this, is a friend of mine. He had told me about it but you don't really realize until you talk to the people who are actually doing the program.

Sarmite Bulte, a member of parliament from Parkdale in Toronto, has just provided me with a package that the Parkdale community is dealing with as well. Maybe that is something we should look at at some point.

Mme Sheila Finestone: Margaret Mitchell had a very interesting project because they moved the right to solicit and prostitution and everything else from the centre of downtown Vancouver to an area that was supposed to be a warehouse area. Of course it presented all kinds of other problems, a very interesting program.

The Vice-Chair (Mr. Paul Forseth): Catherine Kane, I thank you for being with us. Personally you appear to be very knowledgeable and the committee is going to be relying on your advice and help in our future deliberations.

We are adjourning until this afternoon.