I call this meeting to order. Welcome to meeting number 38 of the House of Commons Standing Committee on Justice and Human Rights.
Today we have MP Alice Wong, who's replacing Mr. Moore for the first hour.
Welcome, Ms. Wong. It's great to have you on our committee today.
As members know, we'll be continuing our study on the Canadian Victims Bill of Rights.
We welcome our witnesses who are here today. As a note for the witnesses, interpretation services are available with the globe icon at the bottom of your screen. Please select the language that you would like to listen to. You can speak in either official language.
Before we go to our witnesses today, we would like to pass the operational budget for these hearings. The budget, which was distributed to all members yesterday, is in the amount of $2,550. It will serve to pay for our expenses for this current study.
Do I have the approval of everyone?
Some hon. members: Agreed.
The Chair: Wonderful. Thank you, everyone.
I know we're still waiting for Mr. Niemi from the Center for Research-Action on Race Relations, but we have present today, Kids with Incarcerated Parents Canada, represented by Jessica Reid, who is the executive director of programming and research. We also have the Canadian Bar Association, represented by Jody Berkes, who is chair of the criminal justice section.
I keep time for everyone, for the witnesses and for members. I have a one-minute card and a 30-second card that will allow you to track yourselves with your opening statements, as well as your questioning.
With that, we'll go to Jessica Reid for five minutes for opening remarks before we carry on.
Please go ahead. Your time starts now.
Good morning, Madam Chair and committee.
I would like to thank you for the opportunity to speak about the importance of including children with incarcerated parents in the Canadian Victims Bill of Rights and to provide recommendations to protect their rights, support healing and ultimately help break the cycle of intergenerational trauma and criminality. After witnessing the devastating impact of parental incarceration as an educator, 10 years ago I developed KIP Canada. Currently, we are one of the only organizations in this country that specifically provide support for children who've been affected by their parents' involvement in the justice system. As a practitioner, educator and researcher, I've seen the desperate need for policy changes to better support the over 370,000 innocent children who are affected in Canada.
For decades, children of incarcerated parents have been referred to as the invisible and forgotten victims. Despite the ripple effects of parental criminality on children's well-being, economic security and developmental outcomes, these children have yet to be recognized and supported as victims of crime in Canada. However, these effects are consistent with the bill's definition of a victim.
First, we must recognize and acknowledge that parental criminality often occurs in the context of intergenerational trauma and systematic oppression, where marginalized children are disproportionately impacted and are exposed to mental health and substance-use concerns, poverty and other adverse childhood experiences that only exacerbate the effects on their well-being. Parental criminality has consistently resulted in children enduring emotional harm, stigma and isolation.
Researchers have found that one in five children are present at their parent's arrest. In many cases, children witness weapons being drawn at their parents and their homes being raided. Due to the nature of this trauma, children often experience post-traumatic stress symptoms, separation anxiety and even developmental regression. Moreover, children grieve the loss of their parents, as they have difficulty maintaining contact during incarceration because of the financial, geographic and policy barriers that currently exist.
Scholars have now identified parental incarceration as an adverse childhood experience due to the lifelong impact it has on development and well-being. Specifically, research has shown that children who are separated from an incarcerated parent before the age of 18 years old have an elevated risk of mental health concerns, physical illnesses and negative developmental outcomes throughout life. Without support, it is estimated that children with incarcerated parents are four to seven times more likely to come into conflict with the law. These highlight the importance of recognizing children impacted by parental incarceration as victims in the bill and providing effective support to mitigate their effects.
Consistent with research, our programs and supports at KIP Canada have demonstrated the impact of providing early intervention and support for the unique needs of children affected by parental incarceration in Canada that are guided by their voices and based on trauma-informed, strength-based and anti-oppressive practices. In particular, counselling, after-school and mentoring programs, peer support groups and family visits have been effective in supporting children and youth at all phases of the justice system. Overall, these supports have been instrumental in enhancing their well-being, developing protective factors, and yielding positive outcomes while reducing the cycle of intergenerational criminality.
Based on research, practice, the UN Convention on the Rights of the Child, and our youth advisory, we have five recommendations.
One, include the children of incarcerated parents in the Canadian Victims Bill of Rights.
Two, consider the best interests of children of incarcerated parents, as they identify them to be, at all phases of the justice system.
Three, amend policy to reduce barriers and enable children to maintain contact with their parents, such as by lowering age restrictions.
Four, invest in early interventions tailored to the unique needs of children of incarcerated parents.
Five, improve communication and collaboration between the justice, child welfare, education and mental health systems to increase access to wraparound support for children and families.
In Canada, every child's life and trauma should matter, yet children of incarcerated parents remain the forgotten victims. It's time for us to recognize the significance of the trauma associated with parental criminality and effectively respond by including these victims in this bill and providing the support they deserve. This proactive response would help to address the effects of intergenerational trauma, reduce systematic barriers and support the healing for the invisible victims, while being one of the most effective crime prevention strategies that our country can invest in.
Good morning, Madam Chair and honourable members of the committee.
My name is Jody Berkes, and I am chair of the Canadian Bar Association's criminal justice section.
I join you today from the traditional territory of the Wendat, the Anishinabek Nation, the Haudenosaunee Confederacy, the Mississaugas of the Credit First Nation and the Métis Nation. This land is covered by the Dish With One Spoon treaty.
Thank you for inviting the CBA to participate in the committee's study of the Canadian Victims Bill of Rights, which I will refer to as the CVBR. One of the things that the CBA's criminal justice section prides itself on is that its members come from both the Crown and defence bars. As such, we can bring a unique, comprehensive perspective to how legislation is implemented in the criminal justice system.
The Canadian Bar Association, the CBA, is a national association representing 36,000 jurists across Canada. The CBA's primary objective is to improve the law and the administration of justice, which is why we are here this morning on behalf of our Criminal Justice Section.
Although the CVBR uses the term “victim”, the CBA prefers to use the neutral term “complainant” prior to any finding of guilt. Therefore, when discussing the pretrial and trial process, I will use the term “complainant”. I will use the term “victim” when discussing sentencing and post-sentencing issues.
The section supports, as a general proposition, increasing resources to allow complainants to receive independent legal advice on the criminal justice process. Independent legal advice assists proper functioning of the criminal justice process by respecting the Crown's role as an independent minister of justice and not as an advocate for the complainant, as well as the court's role as an adjudicator rather than as a party that assists the participants in understanding and navigating the legal system.
Additionally, the section supports complainants being provided information with respect to all areas outlined in sections 6 through 8 of the CVBR, with the caveat that confidentiality is needed while criminal investigations are ongoing. Similarly, the section supports sections 9 through 13 of the CVBR regarding complainant protection. For the most part, these were already dealt with through the sections of the Criminal Code regarding bail, obstruction of justice offences, publication bans, third party records applications and testimony accommodations such as screens, remote testimony and the use of support persons while giving testimony.
On the other hand, the section is concerned about expanding the role for complainants in criminal prosecutions, which can result in the creation of unreasonable expectations or conflicts between Crown prosecutors and complainants. For example, section 14 of the CVBR states, “Every victim has the right to convey their views about decisions to be made by appropriate authorities in the criminal justice system that affect the victim's rights under this Act and to have those views considered.”
The Crown's legal and ethical obligation is not to secure a conviction but to ensure that all relevant facts are placed before judge and jury so that justice may be done. Therefore, the Crown must be allowed unfettered discretion in choosing how to prosecute offences. Similarly, decisions on whether to continue or to withdraw prosecutions must remain within the Crown's discretion. While it is appropriate to solicit a complainant's views on procedural issues and in determining whether to continue a prosecution, the Crown cannot be bound by those wishes. This operates the same way regardless of whether the complainant's desire is to continue or to withdraw a prosecution.
The section acknowledges that the CVBR requires the Crown to discuss and inform complainants about trial applications. However, we voiced concern about the amendments to the Criminal Code in Bill , which granted standing to complainants for certain trial applications in sexual assault prosecutions. The addition of a third party with a right to make submissions about the law is problematic for two reasons. One, it has the potential to create friction between the Crown—the party in charge of prosecuting offences—and the complainant, who would likely be the main Crown witness. Two, it has the potential to complicate and lengthen pretrial applications as well as to cause mistrials, which squander judicial resources.
In summary, the CBA criminal justice section welcomes additional resources to support providing complainants with information and assistance in the criminal process. On the other hand, we suggest that prosecution decisions, including responding to legal arguments, be left in the capable hands of Crown prosecutors.
Madam Chair, I know I am out of time but I hope you can indulge me for a few more seconds. This is my third appearance before this committee, and I want to thank you for the opportunity. I have found your questions thoughtful and engaging, and I wish every Canadian had the opportunity to experience their democracy in this way.
Last, I want to thank each and every member of the committee staff and technical support. All of you exemplify the highest standards of professionalism.
Thank you very much for that, Mr. Berkes. You didn't go too much over time, and I appreciate that.
I've just been notified that the Center for Research-Action on Race Relations, represented by Mr. Niemi, will not be able to make it to the committee today. Mr. Niemi has offered to send in his speaking notes. Now, if members agree, we can append those to today's evidence.
I'll see a thumbs-up if that's okay with members.
That's great. Thank you, everyone, for your understanding and your co-operation.
Now we'll go into our first round of questions. I believe we are starting with Mr. Lewis this morning, for six minutes.
Go ahead, Mr. Lewis.
I might be able to respond to that.
Certainly, any complainant in any criminal matter always has the right to retain counsel. There is no restriction on that. The question boils down to who is going to pay for that service.
Though I am a criminal defence lawyer, I often provide independent legal advice to complainants in various matters, such as financial crimes, domestic crimes and various other offences. I provide them with comprehensive information on what their rights and responsibilities are. I find that it assists them very much in understanding these systems, which can be confusing, overwhelming and sometimes scary, for both complainants and defendants.
I think your question focuses in on who is going to pay for that. If we give a right to that, then that right has to be funded. Is that going to be funded at the federal level or the provincial level? At this time, there are various provinces that fund clinics. I, for one, and on behalf of the CBA, welcome additional funding.
I don't know if you have to give a specific right to counsel, since that right already exists and no one is looking to take that away.
Thank you very much.
Thank you, Madam. I have just started my timer.
First of all, I thank both witnesses.
Mr. Berkes, I was starting to think you were a committee member and not a witness, as you've been here so frequently. I say that kiddingly, of course, but really as an expression of gratitude because your evidence every time, and today is no exception, has been very helpful. Thank you for that. I know how hard it is to give up time to do this.
Ms. Reid, thank you for coming today and for being the champion of an issue that is, to say the least, incredibly challenging. You are a lone voice on an issue that doesn't get a lot of support, but it's gaining more momentum thanks to you.
Other members of the committee might not know this, but Ms. Reid, as part of her effort to try to raise awareness on this, has prior to the pandemic made an annual pilgrimage to Ottawa from Toronto, which doesn't sound that impressive until you learn that she did it on foot. She did it several years in a row to try to raise awareness and raise money for the issue. Thank you for everything you're doing. It has been challenging.
One of the reasons it's challenging is that we're talking about victims and their rights. People automatically associate victims with people who have been the victim of a crime, but “victim” has a broader definition. If you look at the definition of “victim” in this legislation, in my view—and you don't have to convince me—it should also include the children of people who have committed crimes. That's why you are here today.
The problem with that is it automatically has a negative connotation, because somehow you're on the wrong side of an issue, and I understand that. When we talk about giving special rights to special crimes, for example, and other related things, to me that focuses on the crime and not the people, and it's the people we need to focus on. That's what you are doing with your cause.
What do you have to say to the people who say we shouldn't be even talking about families of people who have committed crimes as part of this discussion?
Madam Chair, generally speaking, my comments are less related to overall concepts and more to the functionality, but in terms of the question that has been asked, it's a really important one.
At the end of the day, my personal view, which I'll insert here, is that everyone involved in the criminal justice system, from the judge down to the jurors down to the alleged victims down to the defendants, is a human being. Government needs to understand the toll that the system takes on all the parties: judges, jurors, Crown prosecutors, defence lawyers, complainants and defendants. I am all for trying to assist whomever is involved in the system with the type of supports that will help them recover from whatever trauma they faced as a result of the alleged offence: the defendants from the trauma they faced that caused them to commit the offence, and the jurors and people who work in the system who have to observe the aftermaths of the offence.
To answer the question directly, yes, I would support expanding supports by including children of defendants as victims.
Thank you, Madam Chair.
Thanks to Ms. Reid and Mr. Berkes for being here this morning.
Mr. Berkes, it's true that we see you often, but it's always a pleasure to have you.
Ms. Reid, I didn't realize what a trekker you were. I was very impressed to learn that you have walked from Toronto to Ottawa several times.
Ms. Reid, I'm also impressed by the fact that you work on the issue of children with incarcerated parents. That's not an easy subject, and I was moved when I learned that because I believe our justice system often forgets these people.
That being said, kids with incarcerated parents are one thing, but I'd also like you to tell us about the parents of incarcerated children.
Is that an issue that you address? Does your clientele—if I may use the term—include parents of incarcerated children?
Thank you, Madam Chair.
Yes, that is very much a group of individuals whom we also need to care about. In terms of the work we do at KIP Canada, our focus is on the children and the youth and, by extension, their families. Certainly, for families whose children become involved in the justice system, we also need to support the parents.
I think that when it involves the children, there's an extra level of trauma and stress that is put on them when their parents are inside, but we must also recognize the impact that anyone's involvement in the justice system has on the family as a whole, including parents.
Currently in Canada, children and families affected by the justice system are underserved. There are not the supports needed, and this is where we need to invest resources.
In terms of the specific types of support, I agree that counselling is very important. Also, because of the stigma that is associated with having a parent involved in the justice system, children feel as if they are the only one. Connecting them to other peers and having peer support groups and mentorship are key, so that we can help to foster academic success and employment as they navigate and grow up. It's very important.
Also, I think that they need to be included and have their voices heard at all stages of the justice system, when we are making decisions that impact them.
Lastly, we know how important it is for children to have contact with their parents. If we are talking about rehabilitating the family unit, and if it is the desire of the child to have that contact, we need to make sure we are creating opportunities to facilitate it and to reduce the barriers. Currently, there are many barriers to that.
Thank you very much, Madam Chair.
I would like to thank the witnesses for being with us today.
I want to express particular thanks to you, Ms. Reid. As someone who taught criminal justice for 20 years before coming to Parliament, I rarely ever dealt with the issue of children with parents who were incarcerated, except on an individual basis. I think you've done quite useful work in bringing our attention to this question more systematically.
My question is about the characteristics of children. We know that certain groups in our society—marginalized groups, indigenous people, racialized Canadians—are vastly overrepresented in our prison system. I'm assuming, therefore, that the characteristics of children with incarcerated parents reflect that fact. I wonder if you could comment on that.
Certainly, having a centralized system for redress is the most efficient way. It would also contribute to the highest level of satisfaction.
The unfortunate nature of the criminal justice system, as I know from having toiled in it for over 20 years now, is that a just result usually involves everyone in the process being unhappy with the result. When you ask a criminal lawyer how they know it was a just result, the answer is, because no one was happy with it.
Certainly, having a centralized system for processing these complaints....
I find that generally speaking, sometimes these are structural issues that there is just no way around, and people will be dissatisfied with the result no matter what. However, if you try to provide them with the information about how the system worked in their situation and how it should work ideally, I find that at the end of the day maybe they're not satisfied with the outcome but they certainly understand it.
If I might, I would follow up on something Ms. Reid said before. There is a bill before Parliament to roll back mandatory minimum sentencing. Mandatory minimum sentencing is the single biggest cause of the overrepresentation of marginalized and indigenous communities in jails. The devastating effects of incarcerating these individuals aren't just on those individuals; they're also on the families and children of those individuals. This committee should take up the bill at its earliest opportunity and pass it as quickly as possible.
The Canadian Bar Association has passed a resolution calling on Parliament to roll back mandatory minimum sentences.
Thank you very much, Madam Chair.
I'll just state on the record that I'm quite shaken, as I'm sure we all are, by the news that I've heard from London, Ontario, in the last 36 hours. It's weighing heavily upon all of us, as it should be: a horrific hate crime and an act of terror targeted against a Muslim family who lost their lives.
I'm thinking about victims who deal with hate and victims who deal with targeted acts. I know neither of the witnesses spoke to this directly, but I might ask Mr. Berkes.
Mr. Berkes, you commented a little on your views on Bill , the mandatory minimum penalties bill, and I share all of your views and echo them. There's also another bill before the House, which is Bill and which dovetails a bit with this theme that I'm raising. It talks about red flags, and how you might address people who might be potentially in a situation where they might commit an act of hatred; by flagging them, you might help to remove potential weapons, including firearms, from them.
Would you care to opine on what impact that kind of legislation would have in terms of protecting Canadians?
Thanks, Mr. Berkes.
Thank you, Madam Chair.
Mr. Berkes, I'd like you to tell us about the definition of “victim” set forth in the charter. It refers to an individual who has suffered harm and so on. It's a broad definition, but one that may not apply uniformly in the courts across Canada and in Quebec. Its application may vary with the judges and provincial administrative authorities.
Shouldn't that definition be clarified, or should it be stated in the general provisions that these terms include, although without excluding general terms, such and such a situation?
For example, no references are specifically made here to families of victims or attackers. Perhaps they should be better explained.
What do you think, Mr. Berkes?
Madam Chair, once again I'll try to keep my comments very brief.
In the nomenclature we use in the criminal defence bar, the term “victim” is a very loaded term, and in terms of how we like to view things or how we like to term things, we prefer the term “complainant” to refer to the person who has made the criminal complaint.
Other parties can be witnesses. Other parties can be affected by both the charge and the operation of the justice system.
I think if you don't use the term “victim” to designate these people, but just call them who they are—families of the defendant, families of the complainant—that way you focus less on labels and more on people as human beings. That way you can address their specific needs, because depending on where they sit in the courtroom, their needs are going to be vastly different. For a defendant's family, their immediate needs may be to have the defendant come back and serve a conditional sentence at home, so you don't rip the family apart. With respect to the complainant's family, it may be counselling that is needed.
If we focus less on labels and more on needs, I think we will increase the level of justice for all participants in the system.
Thank you very much, Madam Chair. Let me make two quick comments.
First, let me express, as all members of the committee have done, our shock and horror at the hate crime in London, and the redoubling of our efforts to combat hate in Canada, whether it's based on Islamophobia or any other form of hatred.
Lastly, from the witnesses we've heard so far, and those I know we're going to hear, these sessions have drawn our attention to the fact that the five-year review of the legislation affecting victims of crime certainly needs to take place.
In the interests of time, I'll let us turn to the next panel.
I call this meeting back to order, and thank our witnesses for taking the time to be here today.
So members are aware, interpretation is available at the bottom of their screens.
Select the language you'd like to listen to. You can speak in either official language, and please speak slowly and clearly, so that interpretation is easy for all of us, especially our interpreters. When you are not speaking, please make sure you're on mute. When you are speaking, it will be prudent of you to unmute yourself. That would be helpful.
With that, I'll welcome our witnesses.
We have the Honourable Pierre-Hugues Boisvenu, Senator. Welcome to our committee.
We have Dr. Jo-Anne Wemmers, who is a full professor in the School of Criminology, International Centre for Comparative Criminology at the Université de Montréal.
Lastly, we have from the Criminal Lawyers' Association, Leo Russomanno, lawyer.
I have been advised that Mr. Russomanno did not conduct his sound test before the meeting started. Mr. Russomanno, please make sure that you're speaking very slowly, clearly and loudly, so that we don't have any delays with interpretation.
As witnesses may know, I have one-minute cards and 30-second cards to help you keep time during your opening remarks.
We'll start with the honourable senator, for five minutes.
Thank you very much, Madam Chair.
Ladies and gentlemen, thank you for this opportunity to address you today on the Canadian Victims Bill of Rights, which the Conservative government adopted in 2015. I worked for nearly 10 years to get this charter adopted.
In 2005, three years after my daughter Julie was murdered, I had a private meeting with Stephen Harper, who made a personal commitment to make his government the government of victims and to adopt a victims charter. Without that commitment, this charter would not have seen the light of day. He kept his word and I want to thank him for it.
The Canadian Victims Bill of Rights was intended, above all, as a recognition of the victims of criminal acts and their rights within the criminal justice system. This supraconstitutional act, need it be repeated, is based on four fundamental rights that actors in the criminal justice system have a duty to honour: the right to information, the right to participation, the right to protection and the right to compensation.
Unfortunately, victims have not always been treated in accordance with the charter's principles since the charter was introduced six years ago. The charter's objective is theoretically to rebalance the rights of criminals and victims within the justice system by recentring the importance of the role of both those groups. In practice, however, that concept has not been properly applied, as noted in the “Final report on the review of Canada's criminal justice system,” which was released in 2020.
First of all, the report shows that victims find it difficult to report crimes committed against them to police for fear of repercussions against them or apprehension that their cases will not be taken seriously. This lack of trust stems from the very lenient way in which justice is administered to the assailants of victims of domestic violence and sexual abuse, in particular. As a result, sections 9, 10 and 13 under the charter's Protection heading are not complied with.
I would remind you that most of the 160 women murdered in Canada in 2019 had previously reported their attackers to police. That cost them their lives. The report also highlights a lack of compassion and respect for victims once they are in the justice system.
Last fall, I introduced a bill in the Senate to amend the Corrections and Conditional Release Act to assist the families of victims who felt they were being excluded by the Parole Board of Canada and not informed of parole hearings that were being held.
Although the Senate and the House promptly adopted motions to hold meetings via videoconference, was it normal for the Parole Board of Canada to take nearly a year to allow the families of victims to attend those hearings? Section 8 under the charter's Protection heading was thus not complied with. The failings outlined in this report are a direct consequence of a lack of action by the federal government to have its own institutions comply with the Canadian Victims Bill of Rights. When an act as complex as this one comes into force, the government has a duty to ensure it is administered and constantly improved.
The document entitled, “Progress Report: The Canadian Victims Bill of Rights,” which the Office of the Federal Ombudsman for Victims of Crime also released in 2020, states that training opportunities for criminal justice officials are limited and that there has been no campaign to inform victims or the Canadian public of their rights.
The first point raised in the progress report is that there is no legal remedy for non-compliance with the provisions of the charter. There are no possible court remedies for victims whose rights have been violated. They may still file complaints with the organization concerned, but no mechanism has been established to review those complaints, as the charter provided when it was adopted in 2015.
To remedy this problem, it is imperative that the report's first recommendation be implemented: “Delete sections 27, 28 and 29 of the Canadian Victims Bill of Rights, which deny victims any standing to appeal to courts for review when their rights are not upheld.”
The other important point concerns an amendment that I think should urgently be adopted to improve the handling of these complaints. The Office of the Federal Ombudsman for Victims of Crime reports directly to the Minister and Department of Justice. Given the importance of the ombudsman's mandate, the office must be independent of the Department of Justice, and an act should be passed to that effect so that the position reports directly to Parliament. The Office of the Ombudsman should also be the sole competent authority to review the complaints of victims of criminal acts with regard to the way they are treated by a department or federal agency.
If the Correctional Investigator reports to Parliament to ensure the office is independent, why isn't that the case of the Ombudsman for Victims of Crime?
Ladies and gentlemen, it is essential that the act be reviewed every five years. In 2015, we were aware that we had just given victims a vehicle for equal recognition of their rights. Unfortunately, the federal government has forgotten how to maintain that vehicle since it was adopted and, even worse, has put no one in the driver's seat.
It is now up to you to decide the fate of the Canadian Victims Bill of Rights. It will be hard for the justice system to restore the trust that victims have lost in Canadian justice if the charter is not reviewed every five years so that their voices and opinions can be heard.
Thank you for your attention.
I am now ready to answer your questions.
It's an honour to be here. Thank you for inviting me.
When we look at the Canadian Victims Bill of Rights, clearly it represents a step forward, but several issues remain that need to be addressed. Canada has a responsibility to ensure that the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which Canada was one of the countries that took the initiative to develop, is respected across the country. Unfortunately, currently, Canada does not meet these minimum standards and norms for victims of crime.
Key topics that are included in the UN declaration, such as state compensation, victim support and restorative justice, are not included in the Canadian Victims Bill of Rights.
For example, according to articles 12 and 13 of the UN declaration, states should create compensation programs for victims of violence. Currently in Canada, not all provinces and territories have such programs. This inequality needs to be addressed in order to ensure that all Canadians have access to the minimum standards identified by the United Nations. The Canadian Victims Bill of Rights should be modified to include these basic rights for victims. Specifically, the Canadian Victims Bill of Rights should be amended to include access to victim support, restorative justice and state compensation programs.
Second, regarding restitution, in order to execute a restitution order, section 17 of the Canadian Victims Bill of Rights refers victims to civil tribunals. However, civil judgment does not really help victims. We know this. This has been well known for 20 or 30 years in the research. Recognizing the inadequacy of such a provision, other countries have made the state, rather than victims, responsible for enforcing restitution orders, treating them like they treat fines. The state already has mechanisms in place to ensure that fines are paid, and these systems can be used to retrieve restitution owed by offenders. I address this in the research brief, “Restitution in the context of criminal justice”, which I attached with my documents yesterday. It's available in both English and French.
Third, regarding language, article 3 of the UN declaration states that all victims should have access to rights and services, regardless of their language, race, gender, age and so on. Canada is officially bilingual, not to mention the many other languages, indigenous languages, found in Canada. The criminal justice system is set up to accommodate the linguistic needs of the accused, of offenders; however, it does not address the linguistic needs of victims.
An example that is not uncommon, unfortunately, in Montreal courts is when one party—the offender, for example—speaks one language, such as English, and the victim speaks another, such as French. The accused has access to translation services, and rightly so, but the victim does not, and a victim who wishes to attend the trial and follow the case cannot even ask a bilingual friend to accompany them and to help translate. As they are members of the public, they sit in the public tribunal and no one is allowed to speak during the trial.
This problem is not limited to the courtroom either. Services such as compensation programs often have unilingual websites, forms, and so on. Specifically, the Canadian Victims Bill of Rights should be amended to include equal access to rights and services regardless of language, race, gender, age and so on.
Fourth, the rights in the Canadian Victims Bill of Rights are non-enforceable rights. I was quite happy to see the senator raise this issue, as well. This means that when victims' rights are not respected, they have no recourse. What good are rights if they are not enforceable? Victims are powerless against an omnipotent state that has the power to force them to testify as well as the power to shut them out. We need to recognize that crime is a violation of victims' human rights, as well as an offence against society.
Treating victims with dignity and respect means recognizing them as persons before the law, with rights and with recourse. The Canadian Victims Bill of Rights must be amended to include an enforcement mechanism; otherwise, to quote Ontario judge Gerald Day, one can only conclude “that the Legislature did not intend for the Victims Bill of Rights to provide rights to the victims”. I quote this from the decision in Vanscoy and Even in 1999, when two victims brought this case to the government when their rights, as stated in the Ontario Victims Bill of Rights, were not respected.
I have attached a copy of chapter 7 of my book, Victimology: A Canadian Perspective, in which I discuss victims' rights in Canada and abroad.
Specifically, articles 27, 28 and 29 of the Canadian Victims Bill of Rights should be deleted. They should be replaced with an enforcement mechanism.
Modify the language of the Victims Bill of Rights, including article 20, to acknowledge the victims' human rights and recognize that crime constitutes a violation of their human rights.
Good afternoon, everyone.
On behalf of the Criminal Lawyers' Association, thank you for having us back to appear on this important bill. As I recall, approximately five or six years ago I was present before the Senate committee to speak about this bill. I think it's an important exercise for the committee to review bills after they've been enacted, to evaluate their performance.
I don't intend to use up my full five minutes. In my experience, more of the useful dialogue happens when we're exchanging questions and answers with committee members.
I will say that the Criminal Lawyers' Association includes members who primarily practice criminal law. That also includes providing independent legal advice to complainants and alleged victims. In my own practice, I've taken on many files involving independent legal advice to witnesses, alleged victims and complainants.
I think there's an important perspective here, but the perspective of the Criminal Lawyers' Association is really in relation to questions that the members might have about how some of these changes might play out on the ground in trial courts.
As a general observation, I should say that the Criminal Lawyers' Association is concerned about where aspirations don't match reality on the ground and investment in the criminal justice system. We could aspire to create a better system, but without providing the means for that on the ground through investment in the system and investment in access-to-justice models, those become simply hollow words on paper.
Access to justice is a buzzword. Everyone loves talking about access to justice. Oftentimes, in my experience, when the rubber hits the road when it comes to actually investing in the criminal justice system, it becomes merely a tag line. Without any follow-up and investment, access to justice will remain an elusive goal. It's important to address some of these issues and the understanding that victims, witnesses and complainants have of the criminal justice system.
I'll leave it at that for now. I welcome any comments or questions from the members of the committee. Thank you.
First of all, I want to inform the committee that Bill was drafted together with some 100 women who had all been victims of domestic violence; many had also been victims of attempted murder. We gave them a pen and simply asked them what amendments they wanted made to the Criminal Code.
Three important recommendations emerged.
The first was that assailants should be monitored more closely while on trial by means of an electronic bracelet, which is already being used for some purposes in Canada and many other countries.
The second was that an obligation for assailants to undergo therapy should be introduced into the Criminal Code. The idea here is thus to address the causes of the violence. The consequence is that women are murdered, but the cause is often that some men manage their emotions poorly. By requiring assailants to undergo therapy, we will be directly addressing the causes.
The third recommendation was that provisions should be added to the Criminal Code concerning orders not to disturb the peace as well as a new chapter specifically respecting domestic violence.
The purpose of this first step we are taking is to provide better protection for women and, especially, to reduce the number of murders in Canada. Every year, 12 to 15 women are murdered in Quebec, a figure equivalent to the number of victims of the École polytechnique massacre.
This is a very important bill. My colleague Jacques Gourde has introduced it in the House of Commons. I think the House should promptly study the bill because lives depend on it.
Honourable members, I'd like to draw a comparison with the Canadian Charter of Rights and Freedoms adopted in 1982, which has changed a lot since its passage as a result of court decisions. The Canadian Victims Bill of Rights, however, has not undergone any changes in six years. It is a theoretical vehicle, but theory must be put into practice. Because complaints are not managed by a single entity, like the ombudsman's office, it's impossible to get a true picture of how weak this bill is and what victims think about it.
Ms. Illingworth, the Federal Ombudsman for Victims of Crime, is quite right to say that her office should be responsible for administering complaints. I would add that she needs to be completely independent, because the nature of her position would risk putting her in a conflict of interest with the minister if she had to investigate complaints concerning her department.
The ombudsman should therefore report directly to the House of Commons, as the correctional investigator does. It's up to all MPs to evaluate the quality of this bill and ensure that federal agencies comply with it. The ombudsman's independence is very important.
I'd like to say a special thank you to the witnesses for some important testimony today.
Before I begin, I just want to say that my heart and the hearts of all the people in my riding of Cape Breton—Canso go out to the victims of the shooting in London, Ontario, and their families. It is an immense tragedy.
Dr. Wemmers, the night of April 18 into the morning of April 19, my province, Nova Scotia, fell victim to a horrific tragedy that is known as the worst mass shooting in Canada's history. The gunman entered 16 small rural communities across my province, killing 22 people and injuring three others, including members of the RCMP. It's an exceptionally sad, sad chapter in Nova Scotian and Canadian history. Just 10 days after this tragedy, our government announced an immediate ban on some 1,500 makes and models of military-grade, assault-style weapons.
I think we all know that victims who survive such violence are often left with emotional and physical trauma.
Doctor, what does this ban mean for these sorts of victims of gun violence, or victims of other forms of crime, like domestic violence? You spoke to this at some detail in your opening statement, but this is a chance for you to unpack some of those points that you made. Do you think our government could be doing more to support victims of gun violence or their families, moving forward?
Yes, I think we can do more. In particular, on the question of compensation for victims of violence, what is offered by Nova Scotia, for example, in terms of state compensation for victims of crime, is very limited. It's psychological care, which is very important, but that's it. That's all that's offered.
There are, as a result, great differences across Canada. Some provinces offer absolutely nothing. In Newfoundland there is nothing. In the territories there is nothing. That is unacceptable.
So yes, a lot has to be done and a lot more can be done to make sure that Canada meets the minimum standards set out in the UN declaration in order to meet the needs of victims. I think about what happened recently in London, Ontario, which was horrible. My first thoughts were about what is available now in Ontario in terms of aid and assistance for the child who survived. Last year the Ontario government stripped its state compensation program. What was available before, after 20 years of trying to make it better, was replaced by something that, in comparison with Quebec, for example, is very minimal in terms of what services are offered.
This is a real concern. We should at least have minimum standards across the country, so that basic essential services are available to all Canadians who fall victim to violence.
Does that answer your question?
Thank you, Madam Chair.
Senator Boisvenu, I'd be glad to give you some time later to tell us about your thoughts on this matter.
First though, I have a question for Dr. Wemmers.
Dr. Wemmers, I liked the four subjects that you presented, particularly the fourth. It's about strengthening the mechanisms and their implementation.
In your view, are the services currently available from the Federal Ombudsman for Victims of Crime adequate and appropriate for dealing with the various situations? Should changes be made? Should certain responsibilities be transferred to another victim assistance service?
I'll move on to another topic, Dr. Wemmers.
Like Senator Boisvenu, you said that sections 27, 28 and 29 should be deleted from the Canadian Victims Bill of Rights to enable victims to have recourse when their rights are violated.
What recourse do you think victims should seek in a specific situation where a right has been violated? Would victims have the right to appeal a decision against the accused? Do we want victims to be able to ask for restitution from the accused or from the government in certain instances?
What specific forms of recourse do you feel are worth pursuing, but to which victims do not currently have access because of sections 27, 28 and 29?
Thank you for your question.
There are many examples of recourse in other countries. In the United States, for instance, each state has its own bill of rights, some of which are enforceable. This is interesting, because, like Canada, the United States uses the common law system, but their system includes enforceable rights.
For example, in the state of Oregon, there is a form of recourse called mandamus, which is also in the Criminal Code of Canada…
Then according to your suggestions, if a victim had recourse to mandamus
, a legal advisor at the office of the federal ombudsman for victims of crime would seek this recourse on their behalf. Is that it?
You give an example of a victim who did not have access to interpretation services, which strikes me as very apt. When that happens, the victim in the room is treated as a spectator, doesn't have a right to interpretation services, is not represented by a lawyer, and cannot intervene in the process. That's not what we want and it's not reasonable.
In a case like that, how can people have their rights recognized under the bill? For example, should the ombudsman send a lawyer to every courthouse to handle the various requests when they arise? Do you have a scenario in mind on how to go about this or is that something that still needs to be determined?
The key weakness in victim assistance, particularly with respect to restitution, is that it's a provincial jurisdiction. Four provinces have good services, four have minimal services, and four provinces and territories do not offer any victim services. Canadians are therefore not equal before the law.
Furthermore, if a crime is committed in Ontario but the victim is from Quebec, there will be no compensation from the victim's province of residence. The Minister of Justice should show leadership and set minimum standards, as is the case for health and various programs, to make sure that all Canadians are treated equally, no matter where the crime was committed. It's ridiculous that a Quebecker who is assaulted in Vancouver, for instance, would not receive assistance from either British Columbia or Quebec. However, Quebec tends to do so under its new act.
Leadership definitely needs to be developed within the federal government, at meetings of the ministers of justice, to discuss reciprocity between the provinces and basic standards in terms of victim assistance. I think that's the very least the country should do.
Thank you very much, Madam Chair.
Of course, I remain frustrated by these brief series of hearings that we're doing on the Canadian Victims Bill of Rights in place of the review that we need to see, the five-year legislative review. I'll try to ask some quick questions here out of the myriad of questions I have for these witnesses.
I want to start with a question for Mr. Russomanno.
In the ombudsman's victims of crime recommendation 1, we've talked a lot about some of the provisions, but we haven't had anyone talking about her recommendation to establish an “administrative right to review decisions not to prosecute”. I wonder if Mr. Russomanno has any comments on that recommendation.
I guess it's somewhat concerning, given the notion of prosecutorial independence and the difficult decision that Crown prosecutors have to make.
Being on the outside, of course—I've never been an assisting Crown attorney or a Crown attorney—my understanding is that in withdrawing serious charges, for example, charges involving firearms or sexual assault allegations, charges of that nature, it's not a simple matter of a Crown attorney making a unilateral decision to withdraw a charge.
My experience is really from eastern Ontario, but I believe it's the Crown policy manual that dictates that a Crown prosecutor who has carriage of a file would have to consult with senior Crown attorneys, if not the Crown attorney of that particular jurisdiction or a deputy Crown attorney, and have a very serious discussion prior to withdrawing the charge. It's not an off-the-cuff decision, and it's not a decision that is taken unilaterally, but is one in the circumstances where.... Again, based on my own experiences in eastern Ontario, these are not decisions that are taken lightly.
I guess I question what that looks like on the ground. A review of a decision would be.... In what forum would that take place? I'm concerned about tying up further judicial resources where we have a system that is vastly under-resourced as it is and faces systemic delays. I'm concerned about how that might have an impact on prosecutorial independence going forward.
As was mentioned also by the senator, we do it for other things like medical services, where there are at least minimum requirements across the country, and then it's for the rest of the provinces to fill it in the way they see fit.
I think the point of departure would be the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
If you wish, as well, there are even better examples. For example, the Council of Europe, which is much more specific and detailed, runs along the same lines and essentially says the same thing, but with more detail and more accuracy. In that sense, it is interesting to point out that the Council of Europe is currently working on a new recommendation for victims of crime as well, so it's something we're seeing internationally. It would be an opportunity for Canada to catch up, because, while I think Canada used to be a leader when it came to victims rights in the 1980s, we seem to have lost that lead in the last 20 years, unfortunately, and I would be very happy to see us do better. We can do better.
Thank you for your patience.
Members, I am looking at the clock. We have about 10 or so minutes left of the meeting. I wanted to clarify something before I divide the remainder of the time for members.
With respect to Mr. Niemi, I know we talked about appending his speaking notes to today's evidence, but I ask members whether we want to continue with what we have agreed to there, or should we be reinviting him for this Thursday? We have to keep in mind that both of the panels for Thursday are filled, with three witnesses per panel, so it may be a bit challenging, but we would do our best to make it work.
If members can give me some clarification around that, it would be helpful.
Mr. Clerk will reach out to Mr. Niemi and offer either of the two hours, either the first or the second. We will have four witnesses for one of the panels, then, and we will go from there.
With the remainder of the time, and I realize we have a very hard stop at one o'clock, what I will do, as I did in the last hour, is to offer one question per party, starting with Mr. Cooper, who is appearing in person today.
Go ahead, Mr. Cooper.
I'd like to thank the member for raising a very important point.
Like many other MPs, I too would like to offer my condolences to the people of London for the recent events.
Because the ombudsman deals with complaints from all federal agencies and the position is accountable to a single department, it's only a matter of time before there will be a conflict of interest.
In 2017 or 2018, a bill was introduced by MP Sylvie Boucher, I believe, to have the position report to the House of Commons, and made permanent.
The ombudsman position is at the moment a program that is accountable to the Department of Justice and that can be eliminated at any time. The position was not created by an act of Parliament. It's important to make the position permanent and part of the structure because victims are just as important as criminals, who have the benefit of an investigator who is part of the permanent structure, under an act, and reporting to Parliament. Yet again, it would appear that victims are being treated as second-rate people, while criminals are assigned more importance.
I don't want to take away any rights from the correctional investigator position, but would like to see the ombudsman position placed on an equal footing with the correctional investigator by establishing the position under an act and ensuring that the ombudsman is accountable to Parliament. In this way, all parties, and not just the minister, would be able to question the ombudsman about any failings in the system with respect to the treatment of crime victims.
It's a very important matter, and I trust that the committee will look into it with a view to a future proposal.
Thank you, Madam Chair.
Thank you to all the witnesses for all the work they're doing in this regard. This is a very important issue. Sometimes the victims in crimes are much forgotten in terms of how they're perceived.
This question goes on from one of the panellists who was talking before about the children of the accused being victims. What I want to ask about is maybe for Dr. Wemmers and Mr. Russomanno with regard to intimate person violence, whereby that victim ends up being the child of the victim as well as of the accused. How do you think this bill of rights could be amended, changed or bettered by services, so that we could help them? They might be a witness to the crime. They might be the child of the accused and also the child of the victim.
Can you can quickly elaborate on that?
Dr. Wemmers, you're first.
I believe, as it stands now, that the Victims Bill of Rights recognizes that family members of victims of crime, including in the example you've provided, would be considered victims for the purposes of this legislation. With the added overlap that they're also a family member of the accused, I don't think any more would be required to have them fit under this bill.
To follow up on the comments made by panellists in the previous session, it's important to recognize that there are family members of incarcerated individuals and accused persons who also suffer greatly from the commission of crimes, and that they are, directly or indirectly, affected in significant ways. Incarceration is obviously a massive disruption that often affects not only the accused person who is being imprisoned, but other family members as well, who lose a loved one for a significant period of time, or a source of income on which they're dependent, or emotional support. There's a variety of ways in which family members of the accused person suffer greatly.
Thank you, Madam Chair.
Dr. Wemmers, earlier on, Senator Boisvenu and you spoke to us about the problem of reciprocity among the provinces. Services are not the same in every province, and a way needs to be found to make things consistent across Canada. I understand that. Since we are talking about offences against Canadian laws, it seems to me that it should be a relatively straightforward thing to organize.
My question is more about the families of victims of crimes committed abroad, like the mother of a child or the son of a parent killed abroad, or the son or wife of someone who committed a crime abroad. The current provisions under the bill do not provide any support for such people.
Do you feel that the definitions in the bill should be amended to include crimes committed abroad and that Canadian and Quebec victims of crimes committed abroad should be offered the same protection as if the crimes had been committed in Canada?