:
Thank you very much, Chair.
Colleagues,
[Translation]
I am pleased to appear before this committee today to talk about Bill , which enacts the Canadian victims bill of rights and will entrench victims' rights in federal legislation.
[English]
I'm proud to say that this bill, the victims bill of rights act, has been a key priority for our government since 2006. I appreciate the support that has been received for this bill thus far at second reading from numerous groups of stakeholders, victims advocates, including members present, since the bill was tabled last April.
This bill reflects broad consultations and input received from over 500 stakeholders in person or online bringing forward reforms discussed at every federal-provincial-territorial forum, and best practices from international, provincial, and territorial legislation, and programs. There has been a tremendous amount of input. At its core, the victims bill of rights act complements existing measures for victims of crime while respecting constitutional divisions of power in the administration of justice and being very careful to avoid causing undue delay in the criminal justice process. That was an important consideration, I can assure you, which was raised often during our consultations.
I strongly believe that this bill strikes the appropriate balance between the rights of victims and the rights of the accused. Importantly, it extends rights for victims at every stage of the criminal justice process, from the beginning of the investigation to the consideration of the release of the offender on warrant expiry. It affords victims a true sense of inclusion, of respect and consideration, throughout the process. The proposed primacy clause stipulates that all federal legislation would be required, to the extent possible, to be interpreted in a way that is consistent with the Canadian victims bill of rights. Where there is a conflict between a federal law and the bill of rights, the provisions of this bill would prevail, with certain notable exceptions. Victims will benefit from general rules that will be entrenched, will be spelled out, will be cast in federal law for the first time.
We know that victims of crime often seek information about the criminal justice system and the role they play, about their case, about the decisions made by the justice professionals throughout the process. This bill creates a right to information. It brings amendments to the Criminal Code and Corrections and Conditional Release Act to provide more information to victims on things such as bail and prohibition orders, plea arrangements, victim-offender mediation, and parole board decisions. This proposal builds on existing laws, policies, and best practices.
[Translation]
We know that victims are looking for greater protection in their interactions with the criminal justice system. Bill will build on the many existing measures in federal law to better serve victims.
[English]
Specifically, amendments to the statutory scheme governing the disclosure of third party records in sexual assaults proceedings, in the testimonial aid provisions, would require courts to consider the particular security needs of victims who are witnesses. Similarly, proposed amendments to the Corrections and Conditional Release Act would allow the parole board to impose reasonable and necessary conditions on an offender serving a long-term supervision order, which would include a non-contact or geographical restriction if the victim presented to the board a statement about safety.
Studies on child victims have shown that publishing identifying information can exacerbate trauma, complicate recovery, and discourage children from reporting crimes to the police or impact on their cooperation with authorities. That's why the proposals relating to publication bans involving children and using pseudonyms are the logical next step in enhancing victim protection in our system.
The amendment on spousal immunity has sparked some interest. The proposed amendments would ensure that if a spouse has relevant evidence to give, the crown will not be able to call the spouse to testify. Bill would not, however, change the privilege regarding marital communication. A married person testifying at a trial may still refuse to disclose a communication made to them in the confidence of the spouse during their marriage.
[Translation]
We know that victims want to participate more in the criminal justice system. The right to participation set out in this bill recognizes that major concern.
[English]
Specifically, the measure to clarify and broaden the scope of the victim impact statement provisions in the Criminal Code would clarify that victims would be permitted to speak in their victim impact statement to the emotional, physical, and financial impacts of the offence. It could also include their taking a photograph with them, or using testimonial aids to present their statement to the court. These are compassionate measures that we think will aid in the ability of a person to give their evidence.
We know that victims are also concerned about the financial impact of a crime, which often places them in serious hardship. The amendments proposed would provide victims with the right to have courts consider restitution orders against the offender, as well as the right to enforce orders as civil judgments which could or would possibly avoid lengthy civil proceedings for the victim of crime.
We know as well, Mr. Chair, that victims were seeking enforceable and practical measures to address the harm and prevent similar harm to others.
I must pause for a moment to pay tribute to those very courageous individuals who took part in this process and helped with the presentation of this bill by sharing their experiences in the criminal justice system. For many it was a very painful experience to go back over what had happened to them, but I know that they did so with tremendous compassion in their hearts, in the hopes of preventing victimization in the future.
During the consultations, many victims advised that they did not want to see police or prosecutors impeded in the exercise of their authority, or punished. They simply wanted organizations to address problems up front and spare other victims and their families some of the unfortunate experiences they had undergone.
The proposed remedies approach would provide remedial action to victims more quickly than any external adjudicative process, and make federal departments and agencies proactive in addressing victims' needs. This remedial scheme provides a review mechanism with statutory powers and the operational expertise necessary to assess potential breaches of victims' rights, in the context of each department's or agency's operations, requiring that victims use existing oversight bodies with authority to oversee the operations of a department or agency. This is a cost-effective and timely approach, and it's consistent with the input that we received during consultations.
[Translation]
Many victims' rights advocates in Canada clearly supported creating enforceable rights for victims. In her initial report on Bill , the federal ombudsman for victims of crime wrote that this significant step forward will help acknowledge and enshrine victims' role in the criminal justice system. That is very positive.
[English]
After talking about what this bill will do, allow me for a moment to touch on some of the elements that the bill will not address.
The bill doesn't propose to make victims a party to the criminal proceeding or give standing, nor does it give victims the right to receive legal aid automatically. These are areas we spent a great deal of time considering and reviewing. We believe we received significant feedback during the consultations on these specific suggestions. I might say many were concerned that it could lead to unintended negative consequences for victims, unnecessarily burden the justice system, and lead to significant costs and delays in criminal proceedings. For those reasons we have not proceeded in that direction.
The bill also does not give rise to a cause of action or claim in damages. Criminal justice officials noted during the consultations that imposing additional civil liability on officials responsible for implementing this bill would impact on the operations, cost, and functioning of the justice system. As similar clauses appear in provincial and territorial victims' rights legislation, other federal statutes, and related statutes in other countries, we are confident with the approach we've taken on this issue.
This bill will also not provide victims with the right to review or veto a crown decision to prosecute. Again, we've received tremendous input on this subject. Prosecutorial discretion is a constitutionally protected principle in our criminal justice system, and we are protecting it under clause 20 of this bill.
However, we have included amendments to the Criminal Code that would require the court to inquire if the crown had informed the victim of any plea arrangements for serious personal injuries offences, which we believe strikes the right balance and the right approach. Our focus here is giving victims consultation and a voice at a critical point in the criminal justice process, without creating undue cost or delay, or in any way undermining what we feel must be balance in a fair trial.
[Translation]
We will continue to work with our provincial and territorial partners as they implement this legislative measure in their respective jurisdictions.
[English]
In conclusion, Mr. Chair and colleagues, it is my hope we will continue to work together at the federal level to ensure this bill restores victims to their rightful place at the heart of our criminal justice system.
I thank you in advance for the work you are undertaking in looking at this bill in detail. I thank you for your diligence on a number of legislative agenda items you have before you, and I look forward to your questions.
Thank you, minister, for sharing your vision of Bill C-32 on the Canadian victims bill of rights.
I wanted to say right off the bat that I am happy that the process was expedited, insofar as the opposition was able to do so, so that the bill was referred to the committee for study.
In my opinion, there is no role more important than looking after the people we represent. Among the people we represent in our respective ridings are victims. There are all kinds of victims, and they are defined in different ways. I am glad that we can spend an unlimited number of meetings on this issue.
I am glad to hear what you have to say, but we are going to want to hear mainly from victims, the people who look after victims and those who deal with them in the justice system. We are finally going to be able to focus on that. Too often, these people feel that the justice system is not on their side and that they are forgotten. This is a good way to bring the focus back to them. However, it is clear that we have to do so properly, and not just on paper.
You talked about consultations, minister. Our partners, the provinces and territories, are the ones that are frequently going to have to enforce the victims bill of rights once it is passed.
That is why I would like to know whether you consulted the provinces and, if so, how.
Did they see the bill? Did they validate it? Were you able to discuss it?
Could you tell us how all this will be implemented?
:
Thank you very much, Ms. Bennett.
The makeup of this committee, as you know, is not done at the direction of the Minister of Justice, although I do know that female members have attended.
With respect to the funding, in addition to the $120 million in the victims fund that was introduced by our government in 2006, specific funds have been earmarked to enhance victims services at the provincial and territorial levels.
With respect to funding attached to this bill, there will be funding. It was set out in last year's budget, confirming that more resources will be made available, especially as you point out, for the online and broader communications of the implementation, because rights, as we all know, are only as good as a person's understanding and ability to exercise them.
It's my hope that in addition to that effort to communicate about this new bill, the coverage of this committee hearing and the inclusion of many victims and victims groups and advocates who will appear before this committee will also spread the word about the improvements within the criminal justice system. More details will be forthcoming on the funding attached specifically to this bill, and for both the communications and the enhancement of victims' rights and victims services across the country.
:
Thank you very much, Mr. Dechert. I know that you and many members of this committee took part in the consultation and in the formulation of the bill itself.
This was one of the glaring shortcomings, if I could put it that way: basic information for the victim was sometimes missing. It caused a profound sense of exaggerated harm, uncertainty, and anxiety, particularly when court dates were changed and no explanation was given, or, as I spoke of earlier, an offender may have been released into the community without proper notice.
In many cases I truly believe this is never done with any sense of malice or even out of error. There is sometimes a genuine disconnect; one department or one individual may think that somebody else has already informed the victim. We heard this often during the consultation: the police thought the crown had informed them, or the crown thought victims services had done so.
I believe this bill will clarify people's roles, bring about greater certainty of responsibility in the sharing of information, and to the greatest extent possible, provide victims with the firm understanding of the guarantee to the information they're entitled to. That information can now include such things as court orders of restitution; court orders of the conditions that attach to the offender upon release, for example, in a bail hearing; a picture, a recent photograph, a recent image, of the individuals if they had been incarcerated for some time; information, in some cases, where the victim is registered with corrections and conditional release, about how the offenders have responded to treatment or whether they have expressed remorse. These are sometimes things of great importance to the victims, to know how the offenders have responded or whether they have sought treatment, whether they have demonstrated an effort to rehabilitate themselves.
This bill sets out to the greatest extent possible what information should and must be available to the victims upon their request.
:
I think, suffice it to say, there are few things that would be more important to a person than to be able to recognize or pick out the person who caused them harm. Where periods of time have elapsed or the individual may in fact have made deliberate efforts to change their appearance, there is, I think, a right that an individual should enjoy to be able to take whatever necessary steps to protect themselves. The very least is to be able to identify the offender.
As far as other steps are concerned, that knowledge of what those conditions of release may be, whether it be earlier in the process, during, for example, pretrial, pre-sentencing, or after release, the conditions that the individual has to adhere to, including stay-away orders and certain conditions that would apply directly to their residence, to their children, to their place of work, that type of information being relayed accurately and in a timely way to a victim is extremely important.
I might add, practically speaking, this does happen for the most part. Much of what we are entrenching in this bill is done regularly and routinely across the country. This is meant to bring together and consolidate a greater flow of information and a greater flow of confidence to victims and to those in the system and to the public at large, as you've just said.
I wouldn't want this to ever be construed as a damning criticism of those who are working hard in the system every day. This is all about ensuring that we're doing everything possible, and everything now through a federal bill, that will bring about greater compliance and greater protection for victims overall.
I agree that it is difficult to be against Bill , but some criticism has been expressed, particularly about the bill's enforceability.
There seem to be quite a number of good statements of principle. Some things already exist in some provinces, where there are already victims bills of rights. In 2003 the federal government was a party to a sort of bill of rights with its provincial and territorial partners.
The question people often ask me is the following. You must have been asked it often as well, and I would like to hear your answer.
How is the Canadian victims bill of rights provided for in Bill enforceable? This 60-clause bill includes four very important sections: the right to information, which you talked about, the right to protection, the right to participation and the right to restitution.
Which of these provisions are really enforceable, formal, firm? There are not many; that is what victims are telling me. They say that there is something missing. It is good to project a certain image, but something actually has to be done. There are not many definitive things in this bill.
People are worried about funding. My colleague talked about this earlier. How many programs that helped victims have been eliminated in recent years? I have met with first nations groups that submitted projects or programs to help victims in their communities, but they were all refused. People have a hard time believing that this will change things. They are a bit distrustful, and I can understand why.
How do you react to that? How will this change things when many provinces already take this approach and they will have to enforce the law?
:
Thank you very much, Mr. Wilks. Those are really important questions.
Restitution, simply put, is part of the sentencing order to allow victims to be repaid or put back in a place to the greatest extent possible where they would have been had the crime not occurred. Restitution is an effort to cover losses, whether they be financial or property losses, that have been experienced. Where this becomes difficult, and some would say impossible, is in trying to restore any psychological or physical harm experienced by a victim. That's where counselling and deferring medical costs is part of a restitution order that can be made by the court. Losses must be calculated for a judge to make an accurate restitution order, and they must be directly attributable to the crime. That, in a nutshell, is restitution.
As far as why it is important, it's part of the healing. It's part of the sense of true justice that victims be given acknowledgement of and restitution for their loss. It's a very important principle within the justice system. We heard a lot during the consultation from individuals who felt that offenders didn't truly appreciate the impact the offences had on them. Restitution is a form of rehabilitation as well, I would suggest. The offender is giving back and trying to put the individual back in the place they would have been had they not been harmed.
Victims often talked about the out-of-pocket expenses throughout the process: they were required to commute back and forth to the courtroom; they had missed work; they had to make child care arrangements. They were out of pocket. It was costing them further. It was as if the crime continued to be committed. Restitution is a very important part that we felt necessary to ensconce in the bill and to bring about true effect for the victim and changes that would help at least blunt the impact of the crime, in terms of the financial and sometimes psychological and physical impact that victims experience.
Why is it important that we do this? Why were these changes necessarily included in this bill? It's already part of the Criminal Code. It's our hope that this will bring about greater enforcement. What are the mechanisms to do so? This will empower courts, we believe, to follow through, to make necessary adjustments in some cases. I'm going to go out on a bit of a limb in suggesting that some provinces should look at their victim fine surcharges, look at alternative measures, programs that can be put in place that will give victims a greater sense of satisfaction, so there are efforts to see true compensation and restitution. Also, of course, civil remedies can be put in place that will allow for greater compliance with these restitution orders.
That's a long answer to four specific questions, but we felt that restitution is a very important part of a victim's right throughout the entire process and we think this will give it greater teeth.
:
Thank you very much, Mr. Chair.
Thank you as well, Minister.
Today's discussion is extremely interesting, and I think it is necessary.
In the current justice system, the biggest obstacle that victims come up against in their search for justice is delays. I am not making this up. There was a report from the Canadian Bar Association and a report on access to justice from the Chief Justice of the Supreme Court. Many organization have also looked at the issue of access to justice.
We have heard of many cases where proceedings were stopped because of unreasonable delays. The Supreme Court is going to look at the definition of “reasonable delay”. The justice system is under so much pressure right now that the Supreme Court has to look at what a reasonable delay is.
Bill is very long and gives victims many rights. There is a great deal of pressure on justice system stakeholders. What will happen? Everyone agrees that there is a serious shortage of resources. Delays are unreasonable and access to justice has become completely ridiculous.
I understand that the government wants to give victims a very important role. That is quite legitimate, and victims have that right, but what will they do when they have to wait years before they get justice and they may not even have access to a lawyer? They may make more money, but not enough.
You know something about the problems that exist. How will you enforce this legislation? My colleague also asked you how you would ensure that each province has the resources it needs to enforce these rights. Right now, all the stakeholders in the justice system are saying that they do not have the money or the resources to do so.
:
It's a very good question in terms of the implementation. I'll come back to the fact that, as I said earlier to Madam Bennett, we do have funding attached to the bill for implementation and for ensuring greater awareness, in particular for victims but also at all levels: provincial, territorial, and non-governmental organizations.
As for the question about this contributing to further delays, or backlog, or exacerbating the issue of access to justice, I can assure you that we carefully balanced all efforts, and all that you see entrenched in this bill, with that in mind as a backdrop to every calibration we were making to insert or perhaps assert victims' rights.
We were always mindful that anything that was going to cause further delays or restrict a person's access to justice, or perhaps more appropriately, a fair outcome, was always present in our thinking, because it is counterintuitive to what we hope to achieve with this bill that it would actually cause delay. Delay, it goes without saying, is one of those old maxims: delay is the deadliest form of denial. That's what victims had often complained about: that from the initial reporting of the crime to an outcome, whether they were satisfied or not, it was this prolonged, torturous process.
For things such as consultation with the victim on a decision that a crown attorney has to make, or a police officer communicating that, it's my hope that this is actually going to accelerate the thought process throughout to communicate these things to a victim in a timely way. It's going to bring about, I believe, a greater sense of obligation on the part of everyone in the system to consult with that victim early and often.
It's important to understand, I say for emphasis, that victims were not asking for a veto. There was a report. I sat where you're sitting as a member of the opposition when these discussions were happening years ago. There was a report produced by a predecessor committee, called “Victims' Rights—A Voice, Not a Veto”. It underscored that victims were not saying, “Look, we want to be able to stand up in court and state our case in addition to what the prosecutor says”, or “We want our own counsel”. Some may advocate for that, but the vast of majority of victims are simply saying, “We want to know that our voice matters, that we've been heard, and that we are being given a meaningful right and access to justice throughout the process”.
I don't think that necessarily means slowing things down. I think it actually will help streamline in some cases. I think there is a tremendous commitment at the provincial and territorial levels, which are at the front end of the delivery of many of these services, to see that it happens. If it requires more resources, we're prepared to do that, as long as they're prepared to say, “Here's what it actually costs and here's the bill.”
:
First, Mr. Lauzon, I'm familiar with the child advocacy centre in your area in Cornwall, and it's one of the best, as I've said to you previously. We now have 20 operating in the country or in the process of being fully operational. It has been, in my view, again for emphasis, one of the most important innovations that we've seen in decades in the criminal justice system.
It's important to keep in mind, as I'm sure members of this committee are aware, that this is one area where crime rates are not falling. Child sexual abuse and offences against children are actually on the rise in Canada, so the need for these child advocacy centres and the need for further efforts and legislation in that regard cannot be overstated.
As far as participation goes, this bill is very much about requiring, as I said earlier, all actors within the system, including judges, to recognize the important role of victims and the right of victims to have not only the information but the ability to access services like victim services and child advocacy centres, and the ability to enhance their participation through important appearances on sentencing with victim impact statements.
I remember practising law when, much like Mr. Dechert said earlier, victims were treated like a regular witness. They were to give their testimony and go home. Now, through the introduction of victim impact statements, through their participation, and their greater support through the wonderful work that's done by victims services across the country, their participation is more meaningful, more impactful, and I think more satisfactory to them at the end, if you can say that about having to go through the system through no fault of your own.
Adding acknowledgement to the harm that has been done to them and having greater affirmation of their importance in the system is all part of what this bill is aimed to accomplish. I mentioned something that should never been seen as trivial: to be able to bring to court a photograph of your loved one and to be able to express personally how this crime impacted you and those around you is significant. Courts and our entire justice system have to recognize and embrace that change.
That's what this bill I hope will accomplish. It will entrench that type of culture shift towards victims, embracing and putting them very much front and centre when it comes to their rights. I really do believe that we have, through a very non-partisan and inclusive process, moved the criminal justice system a long way.
If I might, Mr. Chair, I want to acknowledge Carole and Pam, as you did at the outset. These two women have done extraordinary work in the last number of years to bring this bill to fruition. It couldn't have happened without both of them.
:
Thank you for the question. I'll start, and then I'll invite Mr. Churney to add anything to my remarks.
With respect to the investigation, certainly the victim will have a right to have information with respect to the ongoing investigation, as Ms. Morency said, not to impede in any way the investigation—there is always the independence of the police—but they will have the right to be kept informed of the investigation.
With respect to an offender serving a sentence, they will have a right to have information on the progress of the offender with respect to their correctional plan, for example, programming that they're following, progress that they're making. As well, they will have a right to be informed of mediation, victim-offender mediation services that are available through Correctional Services Canada.
They will also, as the minister said a few moments ago, have a right when an offender is released to have access through a secure portal to a recent photograph of the offender. Assuming there are no public safety risks to disclosing information, 14 days prior to the release of the offender they will have a right to have information with respect to the date, the location, and any conditions on the release of the offender.
With respect to the parole hearing, they will have a right to present a statement and to designate an official to receive information for them. As well, they will automatically receive a copy of the parole decision.
:
Thank you to the witnesses for being here.
My questions are directed to Ms. Morency or Ms. Arnott. I want to raise the issue of identity protection and the accused's right to make full answer and defence under sections 7 and 11(d) of the Charter of Rights and Freedoms.
It's a four-part question, so I'll just ask the questions, and then you can just fly at it and I'll be quiet.
With regard to sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms, particularly where the identity of the witness is not disclosed to the accused, first, is this why clause 12 of the Canadian victims bill of rights would provide for requests to be made for the protection of the identity of the victims, complainants, or witnesses rather than for orders to be automatically granted upon such requests being made?
Second, who would be the decision-maker where a victim has requested that his or her identity be protected?
Third, on what basis would a decision-maker consider whether to take measures to protect the identity of the victim?
Fourth, would the police and security intelligence agencies know in advance whether anonymous testimony would be allowed, and would they be in a position to give assurances to a witness that he or she would ultimately be permitted by a court to testify anonymously?
:
I'll try to take the questions in order.
On the way that Bill is proposing amendments to permit some witnesses to testify through a pseudonym, right now that ability exists, but it's not codified. It's not in the Criminal Code. Some courts have made the decision, depending on the facts and circumstances, to allow a particular witness to do so.
I can give you an example. In the 2002 decision in Mousseau, there was a victim in a sexual assault case who was concerned.... There were a number of other victims. Apparently the accused was believed to be harassing some of the other complainants and because he knew their names was alleged to be engaging in those kinds of communications. This last victim complainant who was testifying in the proceedings did not wish to be exposed to the same kind of harassment communications, so in that case, the court determined that the witness could testify through a pseudonym. The jury didn't know how the victim was testifying.
Basically, in that case, the court is always going to have to consider the facts and circumstances, so the test that would be applied under the VBR would be the same as what the courts are doing in practice right now. They'll look at it in terms of the importance of the charter right of the defendant to be able to make a full answer in defence and the proper administration of justice principle of open court. The court can take a number of steps. It's going to be the court that will make the decision, and the court can take a decision based on a consideration of all of those factors and what measures could be taken that will secure or safeguard the accused's right to make full answer in defence.
Could the victim testify through a pseudonym and also through, for example, the use of a testimonial aid where the accused can still see the witness complainant? Basically, it's going to be the court in those circumstances that is going to take the decision on what measures are needed to enable that victim in that situation to testify through the use of a pseudonym and still preserve and protect the right of the accused to make full answer in defence.