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]

Wednesday, April 21, 1999

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[English]

The Chair (Mr. John Maloney (Erie—Lincoln, Lib.)): Order.

I appreciate your attendance this afternoon. You're here on very short notice. Up until 5.30 p.m. yesterday we were unaware that we would have this bill. As it happened, it went through on division right at the end of debate, and we're now seized with it.

We also have Bill C-68 coming along, and Bill C-69. In view of the fact that we had a light agenda last week and this week, we felt that now that we have something we can chew on, we should get on with it, especially because it's a bill on which there's not a lot of difference of opinion. I think there'll be just fine-tuning, perhaps, on some of the aspects of the bill.

We're pleased today to have with us, from the Department of Justice, Ms. Catherine Kane and Mr. Yvon Roy.

Thank you for coming. It was very short notice for you as well.

Do you have a presentation you'd like to proceed with?

Ms. Catherine Kane (Counsel, Criminal Law Policy Section, Department of Justice): Thank you.

I thought what I would do is provide a very brief overview of the bill, because I think all members are fairly familiar with it now. It does reflect fairly well all the recommendations of this standing committee's report in October.

After that, I'll just proceed to questions, because I think most members know the provisions in detail at this point.

As you know, the way the bill is set out, it goes in the order that the amendments will appear in the Criminal Code. That's not really the best order to talk about them, so I think I'll concentrate on the four key elements of the bill. If you have questions, I'll direct you to specific clauses of the bill, because I know later on you'll have an opportunity to do a clause-by-clause analysis.

Following your consideration of other witnesses' testimony, if you have other questions or you want me to appear again, that's no problem. I can answer questions at that time if other issues arise in the course of your review of this bill.

The first part of the bill is the preamble. The preamble was recommended in the report entitled Victims' Rights: A Voice, Not A Veto. We endeavoured to capture the principles this committee wanted reflected in the preamble, and put them into the language of a preamble.

Some of the provisions set out in this preamble have also been reflected in other legislation—for example, the legislation two years ago on production of records with regard to sexual offence complainants. It's not the same words but the same themes—the need to balance and accommodate the rights of both the accused and victims and witnesses in the criminal justice system.

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The preamble also highlights the need for victims to receive information, and the need for their views and concerns to be taken into account, particularly with respect to decisions that will have an impact on them.

I anticipate that you will want to take a close look at the preamble, because these are your words, as members of the committee and members of Parliament. Hopefully this reflects what had been intended.

The first issue I'll address concerns the changes to the victim surcharge provision.

There have been complaints over the years about the inadequacy of the current victim surcharge scheme. The current scheme requires the judge to order that the surcharge be paid. The amounts are set out in regulations to the Criminal Code, and they're expressed as maximum amounts.

What has happened in practice is that judges have overlooked the imposition of the surcharge. They've forgotten about it, and nobody has brought it to their attention. As a result, in many cases that are otherwise appropriate, there has been no surcharge imposed. In other cases, where the surcharge has been imposed, sometimes the amount isn't the 15% or the $35 maximum but a lesser amount.

With all these factors combined, with not-so-rigorous collection efforts—often it isn't in the interests of a jurisdiction to go after a small amount, because it will cost them more to collect it than benefit them in the long run—there hasn't been the revenue raised that had been predicted.

So we've revised the surcharge scheme to make the surcharge more automatic. It will no longer require an order by the judge. The wording is such that the offender “shall” pay upon conviction. So regardless of whether or not the judge turns his mind to it, the offender will be obligated to pay the surcharge. The surcharge will be set out in the Criminal Code. There will be no need to refer to regulations. The amounts are set at fixed or minimum amounts, 15% of a fine. So a $100 fine will give you a $15 surcharge. In non-fine dispositions, it will be $50 for summary conviction offences and $100 for indictable offence convictions.

The amendments also preserve the undue hardship provision. Where an offender raises this issue before the sentencing is concluded, the judge could order that the surcharge be waived completely. We're hopeful that judges will only rely on this where it's undue hardship and not just inconvenience or a small hardship because it's an additional penalty.

In addition, there's a provision that gives the judge the discretion to increase the surcharge in appropriate circumstances. For example, the crown could make the submission that in this case the offender has an ability to pay, and the offence is such that perhaps a larger amount is in order. That will address those situations where judges have felt limited by the fairly low amounts of surcharge prescribed in the Criminal Code.

Other amendments also included in proposed section 737, and consequential amendments to make sure the code is referring to the correct surcharge provisions, will make it clear that all the provisions to enforce fines also apply to the enforcement of the surcharge and that the offender will get notice of what the surcharge is that he is to pay; the time for which he should pay it; and how he should go about changing not the amount of payment but just the terms.

So if it's a 30-day period to pay and he can't pay within 30 days, there's a procedure for him to go back to the court and explain why he needs more time to pay, but there won't be a mechanism to change the surcharge order, to reduce it or whatever.

Again, we've re-enacted the provision that makes it clear the fine option program is not available to discharge a surcharge. The other set of amendments deals with the victim impact statements.

These provisions build on the provisions already in the Criminal Code that require a judge to consider a victim impact statement at the time of sentencing. It states that the victim impact statement will be a written statement, filed with the court in accordance with any provincial program governing victim impact statements.

The first amendment in the package will be to make it clear that where a victim wants to orally present or read aloud that victim impact statement, they shall be permitted to do so. The judge will not have the discretion to refuse that request.

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As well, a presentation in any other manner may also be permitted. I'm thinking perhaps of a video, where you're not able to get to the sentencing hearing because you don't live in the jurisdiction, or where you want somebody else to read it on your behalf, or where perhaps you may need an interpreter.

In those situations, the judge will have the discretion to permit that type of presentation also, but if the victim personally wants to read the statement aloud, they shall be permitted to do so.

There's also a new provision that will require the judge, after a determination of guilt and before sentencing, to ask whether the victim has been advised of the opportunity to prepare and submit a victim impact statement. It's envisioned that the crown attorney will likely be the one answering that question, but it could be the victim personally, or a victims' services representative.

Where the judge does not have a victim impact statement and nobody is able to answer that inquiry about how victims are generally made aware of the provisions in their jurisdiction, or whether this victim in particular has been made aware, the judge can, on an application by the crown or the victim or a victims' services representative, adjourn the proceedings to permit either a victim impact statement to be prepared and submitted or to permit any other information to be gathered and presented at sentencing in a manner other than a victim impact statement.

That would be a discretionary provision. It would not interfere with the administration of justice. This recommendation reflects a recommendation of this committee.

We've also expanded victim impact statement provisions to permit their submission and receipt at proceedings for mentally disordered accused. Currently where a person is found not criminally responsible due to a mental disorder, because the person isn't going to be sentenced there has been no opportunity for the victim to submit their victim impact statement. Nonetheless, they are a victim of a crime. The amendment will make it clear that the victim can prepare and submit a victim impact statement.

As well, at the initial disposition hearing for the mentally disordered accused by the court or by the review board—in some cases, the court defers to the review board to make the initial disposition—they shall take into consideration the victim impact statement to the extent it's relevant to the criteria to apply when determining what is the appropriate disposition for the mentally disordered accused person.

There's also an amendment to clarify that the victim impact information, available at section 745.6 hearings, which determine whether an offender's period of incarceration before parole eligibility should be reduced, can be either oral or in writing.

We've also made a few other amendments in the victim impact provision statements. For example, the current definition of “victim” for victim impact statements refers to “the” person to whom harm was done or who suffers loss, and the amendment will make it clear it's “a” person, to avoid an interpretation that there could be only one victim for an offence. As you well know, there may be several victims and several impact statements in any given sentencing hearing.

We've also clarified a provision of the Criminal Code that has been in existence since the original victim impact statement provisions. It states that where a victim impact statement is submitted, the court isn't precluded from considering any other victim information.

We've made it clear that it's not just where the victim impact statement is presented; it's whether or not a victim impact statement has been presented. That provision had been interpreted as only being available where there was already a victim impact statement. Because a victim impact statement should be the victim's choice, there will be situations where there won't be a victim impact statement, but in those situations the court is still entitled to consider any information about the victim at the sentencing hearing.

That's more of a housekeeping-type amendment, but it could be of significant benefit to victims who find themselves in this position of not wanting to do a victim impact statement but wanting to make sure that other information about them or about the impact on them comes to light.

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The other area of reform has to do with bail. We've taken a hard look at all the provisions governing release of an accused pending trial, whether the release is by a police officer, the officer in charge, a justice of the peace, or a judge.

These amendments are at clauses 8 to 11. There are several amendments, but they all do basically the same thing. They require that the person responsible for releasing the person has to take into account, in his consideration of public safety, the particular need to ensure the safety and security of a victim.

As well, where the accused is going to be released on an undertaking or recognizance, the conditions of the undertaking will reflect two changes. The non-communication clause, a fairly standard condition, is expanded to make it clear that communication is prohibited either directly or indirectly. We've also included the word “victim” in that condition, because it hadn't been included until now. It just referred to witnesses or any other person. In addition, there can be a tailor-made condition attached to the undertaking—whatever is necessary to ensure the safety or security of the victim.

Other amendments are also included to ensure that where a judge is releasing a person on bail pending appeal, they're referred back to the same conditions that would apply on an undertaking, and the same considerations.

So we complete the whole process. Whoever is going to be releasing the person should be taking into account the need to ensure the safety and security of the victim and the need for the proper conditions to be reflected in their release.

The other amendment under that same general theme is a requirement that at the bail hearing, the justice shall receive any information submitted regarding the need to ensure the safety and security of the victim. So there are two requirements. Whether or not specific information is provided about the victim's safety or security needs, the person is required to consider it, but specifically, where submissions are made, they shall be considered.

We don't want to suggest that where no submissions are made, you can ignore that. It's an obligation the responsible judicial officer has regardless of whether submissions are made on that issue.

The other area of amendments has to do with making it easier for victims to take part in the criminal process. We've recommended amendments with respect to personal cross-examination of young victims. The age reference has been increased to 18.

The companion provision, which is an interpretative provision for those sections and another section, has been amended also to refer the age to 18 rather than 14.

There is an amendment to permit a victim or a witness with a mental or physical disability to have a support person accompany them. Currently this is only available to young victims and witnesses under 14.

We've made two amendments to the publication ban provisions. The most significant amendment is to codify the common law discretionary provision that will permit a judge to protect the identity of a victim or witness of any offence where necessary for the proper administration of justice. The onus will be on the person seeking the ban to establish why it's necessary, and the code provision will set out the factors the judge should consider when determining whether that order should issue.

As well, the procedure is addressed. Basically, it's a codification of the common law as set out by the Supreme Court of Canada in CBC and Dagenais, although it's impossible to just adopt the words of the court and incorporate them in the Criminal Code. We have taken a great deal of trouble to try to craft that amendment carefully and to make sure all the appropriate factors the judge should consider are set out.

The other amendment to the publication ban provisions deals with the provision already in the Criminal Code that applies to sexual offence complainants. We've clarified that where you're a victim of both a sexual offence and several other offences, where your identity is protected it's protected for the full range of offences that have been perpetrated on you by that offender.

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For example, if a person breaks into your home, assaults you, and sexually assaults you, and your identity is protected as a victim of the sexual assault, it cannot also be reported that you were a victim of an assault and a break and enter. Your identity is protected completely.

That amendment is what we had thought the original provision provided for, in any event, but in a recent case in the British Columbia Court of Appeal, the court accepted an interpretation that your identity was only protected as a sexual offence victim and not as a victim of the other offences.

The last issue I'll raise is with regard to the changes made to information about life sentences. I already referred to the change to clarify that victim information at a section 745.6 hearing could be oral or written. In addition, there's another amendment that will require a judge, when the judge is imposing the life sentence, to state for the record and for the benefit of surviving victims who may be present about the future operation of section 745. So it will provide some advance information that perhaps 15 years down the road an application will be made for a reduction in parole eligibility.

That's the basic overview of the provisions. If you have any questions or if there are some issues you want me to elaborate on, please let me know.

The Chair: Thank you, Catherine.

We'll start our seven-minute rounds with Mr. Cadman.

Mr. Chuck Cadman (Surrey North, Ref.): Thank you, Mr. Chair.

Thank you, Ms. Kane, for your presentation, and thanks to you both for appearing today.

I don't have too many concerns at this point, but I have one question about the definition of the word “victim”. I know the word has changed from“the victim” to “a victim”. Is there anybody who would be excluded by that definition?

Ms. Catherine Kane: No.

Mr. Chuck Cadman: On the other side of it, then, I wonder about the person who reads the newspaper article about the particular offence and feels they're emotionally upset and wants to make a....

I mean, you know where I'm going with this. I don't want to see it go there.

Ms. Catherine Kane: Right.

I think the question you've raised helps me answer the question I thought you were going to ask, about the other definition of victim in the Criminal Code. It's very difficult to craft a definition that captures those who everybody knows, from common understanding, are the victims, and those in the community who may well be victims of the crime but only remotely.

Mr. Chuck Cadman: I brought this up because I was dealing with a person who was with the victim, and the impact of it.... I wouldn't want to see it go—

Ms. Catherine Kane: Too broadly.

Mr. Chuck Cadman: Yes, to the point of being ridiculous.

Ms. Catherine Kane: If you were present while somebody was victimized, you may well be considered also a victim of the offence if you've suffered psychological or emotional harm as a result, but we're counting on judges to use their common sense. If you have 100 victim impact statements and they're all from neighbours and it goes on and on, then obviously there may well be some discretion exercised to reduce that.

On the other hand, we want to avoid the situation where somebody would take a very rigid interpretation and say, no, you are the victim, as the wife of the person who was perhaps killed, but your children are not also victims, or whatever. So we want to be clear that we capture those who should be considered victims.

Mr. Chuck Cadman: Perhaps I could allude to a case—actually, I made comments on this in the House the other day—concerning a woman I know, the mother of a victim of a homicide. She was told she did not qualify for criminal injuries compensation because she didn't actually witness the killing.

Obviously we have to include those people. That would be included under the family member, the blood relatives.

Ms. Catherine Kane: Right.

Mr. Chuck Cadman: Okay.

The only other thing—and I'm not sure it's in your purview to answer this—is with regard to the victims' policy centre. Can you elaborate a bit on where that's at right now? Has there been a mandate set? Has there been staff dedicated to it? Where is that at right now?

Ms. Catherine Kane: We're certainly progressing. I anticipate that the minister will have some comments to make on that issue tomorrow when she appears. A number of staff people have been working together to get this bill in place. That has been our first priority within the department.

The minister has made it clear that the policy centre will be a unit within the Department of Justice. She wants to have it fully up and running within the next few months.

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In the meantime, colleagues and I have been working on implementing the recommendations of the standing committee's report on the minister's instruction that this is her first priority.

Mr. Chuck Cadman: Fine.

Thank you, Mr. Chair.

The Chair: Mr. Bellehumeur, seven minutes.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): On the subject of the protection of witnesses under 18 in the Bill, the Bloc had moved two private member bills, one about people 18 and younger and the other about sexual assault, in general.

I see you have limited protection to persons under 18, just as was suggested in one of the two bills. Did you choose this figure—this is not a trick question—just because of the Charter?

Ms. Catherine Kane: Yes.

Mr. Michel Bellehumeur: Do you think this provision wouldn't have passed the Charter test if protection had been afforded to anyone regardless of age? Of course, asking the question is answering it.

Mr. Yvan Roy (Senior counsel, Criminal Law Policy Section, Department of Justice): This is indeed the concern that we had. You will note that this provision is based on two factors: age and the type of offence about which the person has to testify. We are bound to respect the person's constitutional right to defend themselves the way they choose and as completely as possible. We try to restrict this right to reasonable limits and we think that the age and type of offence criteria will allow us to defend such a provision in court. If we go any further, we think the risk would be much greater.

Mr. Michel Bellehumeur: Up until now, the protection applied to people 14 and less. Was there any litigation in the courts at the constitutional level because it was not possible to directly cross-examine witnesses under 14?

Mr. Yvan Roy: I don't think there were any cases of this type until now. If there were, I don't know about them.

[English]

I don't think Catherine has come across a case of this type either, right?

Ms. Catherine Kane: There is absolutely no reported case law on the application of this provision. We have asked our provincial colleagues to tell us how it's operating now. It seems to be very underused at the moment, although we anticipate it will be used because there's an increasing number of self-represented accused.

[Translation]

Mr. Michel Bellehumeur: My last question is about something you talked about earlier and that is in the minister's hands. I understand that at this time, there is nothing definite or planned about the Policy Centre and that the minister will make a statement tomorrow. Is that the case?

Mr. Yvan Roy: There is something that is definite. I can see where you're heading.

Mr. Michel Bellehumeur: What are the main points of the bill?

Mr. Yvan Roy: This Centre will not deliver any services to victims because we respect provincial jurisdiction in the matter. It will only deal with victim's policies.

Mr. Michel Bellehumeur: But where do we see that?

Mr. Yvan Roy: Within the Department of Justice.

Mr. Michel Bellehumeur: It is mentioned in the press release but are there any other documents describing the minister's intentions with respect to this Centre?

Mr. Yvan Roy: When the minister tabled the bill last week, there were questions about this and she answered them along the same lines as I just indicated. The mandate of the new Centre has not been drafted yet.

Mr. Michel Bellehumeur: Thank you.

The Chair: Thank you, Mr. Bellehumeur.

Mr. Peter MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Mr. Roy et Ms. Kane, I wish to thank you for your presentation.

[English]

Just to follow up—and I don't want to belabour this point—your understanding is that this is not to be an office with a central provision of information to victims. There will not be an ombudsman's role. There will not be a budget attached to that specific task.

Ms. Catherine Kane: The issue of an ombudsman was canvassed in this committee.

Mr. Peter MacKay: Right.

Ms. Catherine Kane: It's my recollection that in the committee report, the view was that it might well be appropriate to look at a victim's need for information about federally incarcerated inmates; that would be an appropriate federal role; and that would be canvassed by a subcommittee of this committee dealing with the Corrections and Conditional Release Act.

In the government's response to the committee's recommendations about the establishment of an office for victims, the minister made it quite clear she was looking at something other than that office; that it would be a policy centre within the Department of Justice; and that it would fully respect the jurisdictional mandate of the federal government and the provincial government.

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As you know, the provision of information to a victim about the case they're involved in can only be provided by the person who's responsible for either investigating or prosecuting. That will always lie with the province. It's not something we, as a federal government, could provide information on. We don't have that information. The policy centre would focus on providing information about the criminal justice system in general to meet that information need.

Basically, three broad objectives were set out for the centre in the response—to coordinate all federal initiatives; to make sure the victims' perspective is considered in the development of all policy and legislation; and to further enhance the federal-provincial-territorial network we've established so that we might know what's happening in other provinces. We might be able to refer people to each other but we wouldn't be providing them with the direct information. We would be able to put them in touch with who they should be talking to in their province, or even, if we knew, at a more local level.

A federal-provincial network could also explore issues of mutual concern. Restorative justice is a good example—what's happening in each jurisdiction, what are the problems, and what are the emerging issues.

A third objective for the policy centre would be to liaise with all components of the criminal justice system outside of government, to make sure we're well aware of the concerns of victim advocates, of victim service providers, of the police, defence lawyers, and so on. On an ongoing basis we'd have a consultation or liaison capacity to get ahead of issues before things get completely out of hand and to try to identify good solutions for emerging issues.

Mr. Peter MacKay: I don't want to put words in your mouth, but you're suggesting that for the after-the-fact type of information victims would be seeking after a trial has been completed, when we're into a situation where the offender's incarcerated, that federal responsibility, then, would be best dealt with through the Solicitor General's department, Correctional Services.

Ms. Catherine Kane: If it has to do with a federally incarcerated inmate, that's the best location for that.

Mr. Peter MacKay: Okay.

I have a more specific question, Ms. Kane. I don't know if you can answer it or if you can tell us whether this was contemplated. I don't think it did come up during the committee's deliberations.

With respect to proposed subsection 486(1.1), there are references specifically to sexual assaults and crimes of violence, but I'm wondering whether there was any contemplation of including in section 486 “criminal harassment”, which doesn't fall into the classic definition of violence, although the effects are often much the same.

Ms. Catherine Kane: Proposed subsection 486(1.1) includes sexual offences and offences in which violence against the person “is alleged to have been used, threatened or attempted”. In many criminal harassment offences, the threat of violence is there. So it would be captured by the provisions that refer to proposed subsection 486(1.1) as an interpretative provision.

Mr. Peter MacKay: Well, yes, sometimes harassment includes threats of violence, but oftentimes it includes just harassment—repeated following, phone calls, staking out a person's home, driving by their home, following them to work, and this type of thing, as you are aware. So if there isn't a violent element of it, criminal harassment wouldn't fall under that definition.

Ms. Catherine Kane: But what particular protection would you be looking for that you think wouldn't be available to the victim of harassment that's covered in section 486? You see, proposed subsection 486(1.1) is a provision that applies to the exclusion from the courtroom of members of the public, but not the accused—the accused is going to be there—and to the restriction on personal cross-examination. In the extreme cases, I would think it would be interpreted as a crime of violence.

Mr. Peter MacKay: From your answer, then, I take it you're saying it's still within the judge's discretion to include criminal harassment.

Ms. Catherine Kane: Yes.

Mr. Peter MacKay: Okay.

With respect to proposed subsection 486(1.2), this is along the same lines as the question from my colleague, Mr. Bellehumeur.

I think it's Pierrette Venne who has a private member's bill about having no age restriction in place in subsection 486(2.3).

Ms. Catherine Kane: Right.

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Mr. Peter MacKay: Was this just an oversight on our part, and on the part of the department, not to raise the age under proposed subsection 486(1.2) to 18 as well? It's been left at 14.

Ms. Catherine Kane: That's a very good question. You will probably note that the Criminal Code has a whole range of different ages where protections apply and certain offences cover. There's not a great deal of consistency in ages of 14 or 18.

There is a project underway to look at rationalizing all the ages in the Criminal Code, including, for example, the age of consent for sexual activity. There's a great deal of controversy about what's the right age. There's no magic age. Children develop at different rates. It's a hard one to nail down to see what the right age should be in the Criminal Code.

I agree that it stands out as a bit of an inconsistency to have 18 in proposed subsection 486(2.3) and 14 in proposed subsection 486(1.2). It may be something committee members want to turn their minds to rather than wait for a series of other amendments later that on will try to bring the ages in line.

Mr. Peter MacKay: Perhaps I'll bring Mr. Roy into this, but first, you don't see any inconsistency, particularly in the context of having a support person available to a 15-year-old as opposed to a 14-year-old? I mean, it seems like quite an anomaly. There are a lot of 17- and 18-year-olds who are perhaps less mature and more intimidated than is a 12-year-old going into a courtroom and who need that support person available to them.

Ms. Catherine Kane: That's very true. It is a discretionary provision; it would be where the witness wants that protection. So you could envision situations where the 18-year-old wants to have a support person present and others where a 12-year-old doesn't want it, or need it. It will be up to the judge.

But the provision as drafted—and I think it's been in the Criminal Code since 1994—adopted the age of 14.

Mr. Yvan Roy: I'm not sure I necessarily see a contradiction between provisions where you have 18 and others where you have 14, because I think what the code is trying to do is achieve different goals in those circumstances.

When you look at proposed subsection 486(1.1), what's the goal being achieved? It's for the witnesses not to be intimidated by someone who would do that. We have some examples of that, where they do that on purpose. It is part of their pleasure to continue to torture—and I use that word knowing exactly what I'm doing—these witnesses by cross-examining them on the stand.

We think there is room for an amendment here to bring that up to 18, given the type of behaviour we're talking about here. It will be for the judge to really balance the interests of, one the one hand, the accused, and on the other hand, the victim.

As I said in response to the question Mr. Bellehumeur put to me, the two factors involved are the type of offence we're talking about and the age of the individual.

Proposed subsection 486(1.2) is trying to do something else, as is readily apparent when we read it. It is to bring in the possibility for someone to have a support person. The call that is being made by making this amendment at this point in time is to say that we should bring into that equation the fact that people who suffer from some handicap should also get that same kind of benefit.

I'm not sure we have the data now, the information or the knowledge, to bring the protection to those who are 18 or 16 or 14 or 15. As Catherine was saying, it is a bit arbitrary right now, quite frankly, the way the age is being determined. We have 14, 16, and 18 years old. At 14, we are confident we can defend a provision like this before the courts. By providing that protection to people who have a handicap, we're confident we're going to be in a position to defend this.

If you're saying, well, bring the age limit higher, we're a little bit less comfortable with that. That's the reason it hasn't been changed. If you were to hear some witnesses in the next few days that would bring that to the fore and would give you some evidence, sure, this is certainly something that can be amended. At this point in time, though, we're a little bit leery about doing something of that type.

Mr. Peter MacKay: All right.

I have one last quick question.

The Chair: A very short one, Mr. MacKay.

Mr. Peter MacKay: There's no mention of restitution under the victim fine surcharges section. I mean, restitution is still there as an option to any sentencing judge.

I also notice that under the new Youth Criminal Justice Act there's no inclusion of victim fine surcharges—that is, this does not attach to the new Youth Criminal Justice Act.

Now, I suppose we have a chance to discuss that in the context of Bill C-68 coming before the committee, but has that been contemplated by the department?

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Ms. Catherine Kane: There is a provision in the Youth Criminal Justice Act with respect to the victim surcharge. It's not an identical provision. There's a discretionary provision. The judge sentencing the youth can attach a victim surcharge up to 15% of a fine. It's only going to be available on fines. That's consistent with the need to take into account the ability to pay a fine and a surcharge.

There is also a companion provision that permits the province to say a percentage of all fines imposed go into the victim assistance fund. So they've dealt with it in two ways, slightly different from the way we've dealt with it in the Criminal Code. The automatic mandatory imposition of a surcharge was not consistent with the philosophy behind the Youth Criminal Justice Act. Therefore, they were fully aware of the committee's recommendations, and they took them into consideration, but that was not the amendment that resulted in section 52 of that act.

The Chair: Thanks, Mr. MacKay.

Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Ms. Kane, I've been reading through the preamble again. It's quite an extensive preamble. Most of us on this committee are pleased to see a preamble as a potential charter-proofing device. I'm sure the Department of Justice has its own reasons for wanting to charter-proof it. We in the House, on behalf of the electorate, on behalf of the elected piece of government, have our reasons as well.

In the preamble and in this legislation we are re-calibrating a number of finely tuned balances under the charter and under our general law. These are the balances between the victim and the accused, the witness and the offender, the victim and the public, the state and the offender, and the witness and the public.

Now, “the public” would often include the media, who are avid and voracious followers of criminal prosecutions on behalf of their readers.

Mr. John McKay (Scarborough East, Lib.): Are you sure about that?

Mr. Derek Lee: You have to make copy.

Can you articulate for us where, from your point of view, the most critical re-balancing has occurred in this statute? I'm assuming the most significant re-balancing has taken place in the areas where we would have to consider most closely the provisions of the charter. I'm assuming that.

Can you indicate where you believe the most sensitive re-balancing has taken place?

Ms. Catherine Kane: In my view, we have not re-balanced anything that would in any way take away from the rights of an accused person. We've injected into the process the need to consider the interests and concerns of victims. The statement in the preamble is basically taken right from the common law, as stated by the Supreme Court of Canada, that there is no hierarchy in charter rights and that they have to be reconciled and accommodated to the greatest extent possible.

The areas where that provision in the preamble will likely be referred to most will probably be the publication ban provisions, because we anticipate that there will be arguments that we're limiting the principle of openness. But there's sufficient case law from the Supreme Court of Canada that states quite clearly that openness is the principle—that's certainly reflected in this legislation also—but there will be occasions where covertness to a certain extent will be essential also for the proper administration of justice, and those limits can be justified where they are carefully tailored.

So the publication ban provision is one area in which this balance will have to be struck. The factors set out in this bill basically cover all the varying or competing interests that should be taken into account—freedom of the press, the accused's rights, the public's right to a fair and open trial, and the particular witness's or victim's right to privacy and security and so on.

• 1620

Mr. Derek Lee: Do you think this bill, from our point of view as legislators, adequately articulates our view that in lining up the balances here we've come down firmly in favour of the victim? If there is to be an order of precedence here, we've decided to side with the victim as opposed to the public's right to openness. It may be a right or it may be something else, but....

Ms. Catherine Kane: I think the amendments and the preamble are quite clear that we're not taking sides, or siding with the victim or siding with the offender. We're trying to make it clear that there are more than two sides, more than just the crown and the accused. There is a victim in this process, and all those rights have to be thrown into the mix and considered.

In any particular case, in the application of these provisions it may appear that one side or the other has won out, but in the legislation itself, if the legislation is applied in a way that's consistent with the charter, as judges are required to do in exercising discretion, it will be a case-by-case determination.

Mr. Derek Lee: Yes, but our job, Ms. Kane, is to hit the nail on the head here. I know I'm not comfortable sending the issue off to 101 courtrooms across the country to have judges make these decisions about who's first and who's second.

I was hopeful that you might be able to articulate what exists in this bill that shows that this Parliament will pretty firmly indicate its view of where the priorities lie. I'm not interesting in hearing that we haven't made the case and that the decision is in the hands of a judge somewhere in Manitoba or Nova Scotia, and that his or her decision is in the hands of an appeal court somewhere else. If we don't like it, then it's off to Wellington Street here, to the high court.

Ms. Catherine Kane: If we had a bill that set the scales tipped in a certain way, that the victim would prevail in all cases, it would only be determined by one court, and that would be the Supreme Court of Canada. We'd be back here in fairly short order changing the legislation.

Mr. Derek Lee: No, no. Ms. Kane, Parliament is quite capable of making those decisions. I'm asking you to articulate if we have adequately articulated this in the preamble.

I'm getting the picture that your department's drafting has avoided settling the issue, that you've articulated all of the balances but haven't nailed it down.

Ms. Catherine Kane: If we nailed it down, we would not be able to indicate that this legislation was in conformity with the charter. If the preamble doesn't reflect Parliament's views, then it will be for members to indicate and for appropriate amendments to be made. But as it stands now, this is legislation that will withstand charter scrutiny. In our view and in the minister's view, it will inject consideration of the victims' interests into the range of interests that have to be taken into account when specific decisions are being made.

Mr. Derek Lee: Are you suggesting that the charter prevents this Parliament from hitting the nail on the head and stating that in the sections we've dealt with in this bill they're there for the benefit of the victim?

Ms. Catherine Kane: Perhaps if you could be more specific about what it is you would like to see in a particular section of the Criminal Code, I could answer better.

Mr. Derek Lee: Okay. Perhaps I have been dealing too much in the abstract.

Mr. Peter MacKay: No, not you.

Mr. Chuck Cadman: Never.

Mr. Derek Lee: Oh, oh.

Maybe I'll scout around for some good examples for you while other colleagues continue.

The Chair: Mr. Roy has a comment.

Mr. Yvan Roy: I myself was going to try to come up with an example of something you perhaps would like to discuss more specifically. The problem I have is that here we have a number of interests at play. If I understand you well, it seems to me you are suggesting that there are some things for which it is clear the victim should have the upper hand, and I'm not sure whether in legislation it is feasible to do something like this because of the competing interests and therefore the different factors that must be taken into account.

• 1625

Now, if you have a number of factors that must be taken into account, you and I know very well that someone will have to make a determination as to who is going to be getting what, and in what circumstances. It's difficult for me to understand or to come up with a solution better than what would be done at some point in time by an arbiter of some type, and in our system, that arbiter is the courts.

Sure it will cause some problems. I just can't see a judge in Nova Scotia making a ruling in one direction and a judge in Manitoba going in another direction. It's going to have to be reconciled at some point in time at a higher level.

Mr. Derek Lee: Okay.

Mr. Yvan Roy: I'm afraid this is the system we live in—

Mr. Derek Lee: Don't be afraid.

Mr. Yvan Roy: —but this has now given you a chance to come up with something more specific.

Mr. Derek Lee: Let's look at paragraph 3 of the preamble. For the sake of discussion, I'll call it pussyfooting around; it doesn't even have to be there.

It says:

Whereas...the rights guaranteed...in the event of a conflict between the rights of accused persons and victims of and witnesses to offences, that those rights are accommodated and reconciled to the greatest extent possible;

Isn't that simply re-articulating the charter?

Ms. Catherine Kane: Yes, to a certain extent it is.

Mr. Derek Lee: I would have thought we'd take advantage of the preamble to say that this statute is actually tilting; Parliament says we have to give a wider berth to the position of victims. We understand that other people have rights, or a balance of rights, but let's make way here for some victim perspective. I don't think that section does much in that regard.

Mr. Yvan Roy: In my view, this paragraph goes as far as we can, and I'm going to tell you why.

The choice we have is to say what traditionally has been the situation in this country—namely, that the rights of the accused prevail all the time. Since some of those rights have been articulated and are now in the Charter of Rights and Freedoms, the other rights of other individuals, whether they be victims, the press, or someone else, are secondary. Every time there is a conflict, a judge will have to say, “Sorry, but the rights of the accused prevail.”

The Supreme Court of Canada in the case of Dagenais, to which Catherine referred when she talked about the publication bans, said something that we thought was extremely important, that constitutional rights do not prevail one over the other. Judges have to look at the rights of one compared with the rights of the other and try to balance them, which is what this paragraph is basically saying.

In other words, instead of saying that the rights of the accused always are first, we are saying no, no; taking our lead from the Supreme Court of Canada, we are saying that those rights—and Parliament would be making this very strong statement—have to be balanced. A judge cannot say, “Sorry, the rights of the accused must prevail in these circumstances.” This is what this paragraph is trying to say. It is not saying, however, the rights of the victim prevail over those of the accused, because the Supreme Court, in that very same decision, hasn't said that either.

So we would be, it seems to me, in a bit of a tough spot if we tried to say something of the kind.

Mr. Derek Lee: We could, as Parliament.

Mr. Yvan Roy: You can try that, yes.

Mr. Derek Lee: It's certainly within our right to do it.

Mr. Yvan Roy: Sure. But I'm not sure you would win before any court in this country or before the Supreme Court of Canada.

Mr. Derek Lee: Parliament always wins. We never lose. We write the laws.

Voices: Oh, oh.

The Chair: Mr. Lee, we're going to have to move on. We're beyond our time.

Three-minute rounds now, starting with Mr. Cadman, please.

Mr. Chuck Cadman: I didn't want to bring this up at this point, but I'll do it now that it's out here.

We had a case at home, in Surrey, where we had someone who was alleged to have committed three rapes of pregnant women. The police, on investigating and checking this guy's apartment or house, found in the medicine cabinet medication for HIV. That's the only way those particular victims were able to find out that this guy was HIV positive.

I think most people would say there should be some provision whereby somebody accused of a sexual assault should be able to be tested for HIV so that the victims are put at ease.

Now, if we're saying we have to wait until this goes through all the levels of court, how long is this going to take? How long is this putting a victim on the hook, wondering if they're HIV positive?

Where are we on this type of thing?

• 1630

Ms. Catherine Kane: This is an issue many people are grappling with in terms of whether there should be mandatory testing. It's very difficult from a charter perspective to say it should be. With regard to the accused, there's the presumption of innocence, but on a more practical level, for the benefit of the person who has been sexually assaulted, all the health information is very clear that testing the other person isn't the answer. They have to be tested themselves. The health profession is very active in ensuring that all the appropriate tests are performed in various windows of opportunity for the virus to be detected. There could be situations where even if the accused person was tested you could get false positives or false negatives, and it's no comfort to the victim. They have to be tested themselves.

So having the offender tested, whether we could have a provision that made that mandatory or not, doesn't address their need to reassure themselves that they have not been infected with HIV.

Mr. Chuck Cadman: No, I understand all those medical arguments. I'm looking at it purely from the perspective of the sexual assault victim, to at least put their mind at ease.

Sure, I understand they're going to have to be tested themselves, but it would be a lot handier for them to know right up front if the accused had been tested and tested negative.

Ms. Catherine Kane: But that wouldn't be the answer to that issue, because the accused could be tested and test negative because the virus hadn't “manifested” itself—this is the medical term—or was not detectable at that point because the person could have been infected very recently, before the assault on the particular victim, and it wouldn't be detected.

So as a matter of course now, whether HIV is an issue or not, women who are sexually assaulted undergo this battery of tests on an ongoing basis until they can be assured they haven't been infected by this person.

It's an unfortunate reality of the times we live in, but it's for their own benefit that they do so.

Mr. Chuck Cadman: I think it's an issue we're going to be grappling with for a long while, there's no doubt.

The Chair: Thank you, Mr. Cadman.

Mr. Bellehumeur.

Mr. Michel Bellehumeur: No.

The Chair: Mr. Peter MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

I have a further question with respect to victim fine surcharges and their application under this legislation. I know from my own experience in private, and practising with the crown, that it's very difficult to collect these types of surcharges. Similarly, it's very tough to enforce maintenance in the context of a family court order.

I'm just wondering if, along with the legislation, there is any other direction coming out of the department for the provinces as to how they're going to administratively enforce this now very firm victim fine surcharge.

Ms. Catherine Kane: As you are aware, collection has been a problem. Collection is the responsibility of the province, because they're going to keep that revenue. All the same mechanisms to collect fines exist to collect the surcharge.

There have been amendments made in Bill C-51 that make it clear that those provisions that permit you to suspend or revoke or deny a licence apply to surcharge also. Our provincial colleagues tell us that's the most effective way to get people to pay these fairly small amounts when they go to renew their driver's licence, for example, or get a fishing licence, or whatever it is. If there's an outstanding fine, they'll ante up the $50 or $100 at that point in time.

We have a commitment through our working group to look at enforcement strategies together to see if we can find some best practices, so to speak, that one jurisdiction could then adapt in their own jurisdiction to see what is the best way of collecting the surcharge.

We would also like to explore how much money is actually being raised and what it's being used for. If we can highlight some of the examples of victim surcharge revenue, it may encourage more people to pay that.

Mr. Peter MacKay: Is there any movement—and I shudder to even suggest this—toward including the Department of National Revenue in this? I mean, they seem to be very effective at milking every last red cent out of people's pockets, so when we're talking about criminals here....

Ms. Catherine Kane: Not at this point, because those types of processes cost a huge amount to put in place. If you do a cost-benefit analysis, to get the federal government to collect on behalf of the provinces and to get it back into provincial hands we would probably require a huge bureaucracy.

Mr. Peter MacKay: We don't want that.

Ms. Catherine Kane: It really wouldn't benefit victims in the long run.

• 1635

Sometimes there will be a trade-off, and the provincial collection agencies might say it's not worth the effort, but hopefully the big picture will be that there will be a significant increase in the revenue available.

Mr. Peter MacKay: Okay.

Thank you, Mr. Chair.

The Chair: Mr. John McKay.

Mr. John McKay: Going back to your definition of victim, is a victim anyone a judge says is a victim?

Ms. Catherine Kane: For the victim impact statement provisions there is a specific definition. For the other provisions, where we've used the word “victim” it's almost a new term in the Criminal Code. In the past you've seen “complainant”, or just “witness”. We haven't set out “victim”. So the definition in clause 2 is not really a definition. It's just a clarification.

It says:

“victim” includes the victim of an alleged offence;

That's to avoid the argument that there can't be a victim until there's a conviction, but we're relying on the common understanding of what a victim is.

So you could have a situation where a judge says, “Yes, I think you were a victim”, but I anticipate that most judges will be referring to the same type of victim we have defined for the purposes of the victim impact statement. That seems to be the common understanding of what is a victim.

Mr. John McKay: So the definition in the victim impact statement will define what a victim is for pretty well all purposes.

Ms. Catherine Kane: Because there's an acceptance of that.

Mr. John McKay: You heard my colleague from Parkdale—High Park in the House yesterday. She was making an argument to the effect that a community could be or should be considered a victim.

I don't know enough about the legislation to have an opinion on that, but what is your response to her argument?

Ms. Catherine Kane: We are familiar with the use of community impact statements. Most of the time they're used not in the courts but in a restorative justice type of context, where the community is involved in dealing with offenders whose offences are.... I won't say “victimless”, but there's no direct victim, such as prostitution, or some small-scale drug offences and so on, where the community may take an interest in finding the appropriate sentence and there's a growing movement toward adult justice committees. In those situations, community impact statements are used.

Mr. John McKay: So the argument is that in certain instances, she's right.

Ms. Catherine Kane: Yes, it happens.

Mr. John McKay: So it could happen, and there's nothing that restricts that.

Ms. Catherine Kane: It could happen, and it doesn't need legislation to happen.

Mr. John McKay: Okay.

My second question is with respect to these surcharges Mr. MacKay was talking about. Are we creating something here where we're turning a good news story into a bad news story by raising an expectation among victims that this is not a restitutional order, that although it's described, I assume, as a victim surcharge, it's not going to go to the victim but into some pool where it will get lost somewhere?

I'm mildly concerned that this might in fact be an expectation; a $10,000 fine yields a $1,500 victim surcharge, and people say, “Where's my cheque?” How do you see that being handled in the system?

Ms. Catherine Kane: The victim surcharge provisions don't preclude a restitution order being made where restitution is the appropriate sentence. If you had an offender that could make restitution to the victim, that would even take priority over the payment of the victim surcharge. The code sets out the priorities of payment, and restitution is always at the top of the list.

Victims are fairly familiar with the victim surcharge provisions now. It's always been made clear that surcharge revenue was for the benefit of victims as a group. Some provinces have publicized how they've used their victim surcharge revenue.

There's no doubt that it doesn't go into some hole; it goes into a dedicated fund. The provinces spend that money ten times over on victims' services, and they can point to those services.

So I think most victims have a fairly high confidence level that the surcharge revenue is put to good use even though it doesn't go into their own pockets. It's the same with restitution. Otherwise, you would have some victims getting money from the offenders and others not getting money from the offenders, because basically you take offenders as you find them, and they don't all have the ability to pay. The benefit of victim surcharge revenue is that it's used for the benefit of all victims who can avail themselves of the services provided by that revenue.

• 1640

Mr. John McKay: A final point is with respect to Mr. Lee's question about the preamble. Actually, I thought that third paragraph captured A Voice, Not A Veto as it related to the evidence. With the greatest respect to my dear colleague, as I listened to the testimony, there wasn't a challenge to, say, the fundamental right of an accused to be presumed innocent until proven guilty and things of that nature.

So I'm not prepared to be critical of that paragraph.

Ms. Catherine Kane: Thank you.

The Chair: Thank you, Mr. McKay.

Ms. Bakopanos.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): I hope this question wasn't asked; I had to leave for a little while to do a cable program on this.

I'd like to know a little bit about how you ensure victim safety in bail decisions. I know we're trying to make some changes in terms of the Criminal Code to ensure that the victim is part of the whole process. One of the concerns that was raised when we did the round table was their safety in terms of walking down the street and coming face to face with the offender who's either out on bail or on parole.

I'd like you to elaborate a little bit. Ensuring the safety and security of the victim is fine—in other words, making sure the judge or the justice of the peace takes that into consideration—but to be honest, I always thought that was the case. I thought that would be a consideration of the judge.

How are we improving that situation? I really don't want to use the word “guarantee”, but in what way...? It isn't all federal responsibility; it surely is provincial jurisdiction. As well, the police obviously will play a role in terms of ensuring that whatever bail conditions are set, whatever measures the court officials take, those will in fact be seen through. But we know there are always people falling between the cracks, and somehow that victim will walk down the street and come face to face with the offender.

How do we strengthen what is already there in order to ensure that doesn't happen, and that scenario doesn't take place?

Ms. Catherine Kane: You're quite right that there will never be any guarantees, but we hope there will be significant improvements. I think in many cases, or in most, the person making the decision about bail has taken the victim's safety into consideration. These provisions will basically highlight those to say that in considering the protection of the public, the victim is a member of that public.

We've heard situations, I'm sure you have also, particularly in domestic violence situations, where the person considering bail has said, well, you're not a danger to the public. That may be true, but they're a particular danger to the person they've already allegedly assaulted.

So with these amendments, we hope the people making those very important decisions will turn their minds to the particular people who have been harmed, in turn influencing their decision. In the context of protection of the public, there are individuals, members of the public, who also have to be protected.

The conditions that can be included in the release, if there is a release, can be tailored to the particular circumstances. I can envision the wording of some of them, but it will vary from case to case, according to what's necessary. It may be that in some situations the victim will be able to dictate what it is they think is necessary, which could be considered by the person making the decision.

Ms. Eleni Bakopanos: That was part of the point I wanted to make, whether or not the victim will in fact have the opportunity. I thank you for bringing to our attention the fact that it usually happens in family violence situations. In fact, I think that is one of the main concerns of a lot of women who have been in those types of relationships, that the judge will take very lightly individual situations.

Again, there are no guarantees, but will that victim then have a voice?

Ms. Catherine Kane: We didn't put in a requirement that the victim make those submissions or be present, because that's too much of a burden on the victim, and often these decisions are made in very short order. So we placed the onus clearly on the person making the decision to turn their mind to the victim's safety, whether the victim is present or not to make submissions, either personally or through the crown attorney.

There should be enough information in the police brief, in any of the notes the officer has taken, and in just the description of the offence to alert the person making the decision that there are safety issues at stake. It should be a matter of common sense.

• 1645

If the police officer, if that's the first person considering it, has any reservations about releasing, he can defer the decision to the officer in charge, to the justice of the peace, and so on. They'll all be obliged to take these issues into consideration when making the determination.

We hope this will assure victims that their safety is going to be one of the first considerations and that the conditions they have in the undertaking will be enforced. Our provincial colleagues have told us that they will be making efforts to ensure that the victim gets a copy of that undertaking so that in the event they have to call 911 or whatever, where the offender is on their doorstep in contravention, they won't have to be convincing anybody that they have the order. It will be right there, and enforceable on the spot.

Ms. Eleni Bakopanos: Thank you.

The Chair: Thank you, Ms. Bakopanos.

Mr. Cadman had another question.

Mr. Chuck Cadman: It's just a brief comment, not a question, on what Mr. McKay was talking about with regard to the community impact statements.

I believe my own community of Surrey is really looking at that on the issue of graffiti and so on. It gives the municipality an opportunity to appear and to basically say, okay, this is what it's costing this community, and the taxpayers in this community, to deal with this issue.

At first blush, I said, “Whoa! Hello; where are we going with this one?” My worry—and this is not to get myself in trouble with my own municipal politicians—is that we'll see municipal politicians grandstanding at court hearings come election time.

Mr. John McKay: No; come on.

Mr. Chuck Cadman: So I had reservations, but I can certainly understand it. As long as it's held within parameters, and within certain guidelines, I can't see any problems with it. The taxpayers of a community are the victims when it comes to dealing with that type of problem.

I just thought I'd make that comment.

The Chair: Anyone else? If not, I have a short question.

We've covered under this statute concerns with regard to serious crime. Concerns were expressed in our discussions that routine victims of minor offences are never kept informed of what happened. Sometimes they never even know whether the accused has pleaded guilty, or the disposition, or they receive a call two or three days before a trial, or even the day before a trial, asking them to be there, and then are briefed very cursorily by a crown attorney.

Was that considered in this act and perhaps dismissed because of its...? Is it an administrative problem that should be dealt with by the provinces or is it just too complex to set standards for the treatment of victims for all crimes to be kept in the loop vis-à-vis the progress of a case through the system?

Ms. Catherine Kane: Basically, information about progress of a case through the system has to come from the province. Provincial victims' services are geared to help all victims, but they do sometimes prioritize their services based on the resources they have. When they do so, they focus first on victims of violent crime, domestic violence, and sexual abuse. Those seem to be the three key priorities.

So it may well be that in some cases, some of the victims of robbery, break and enter, and so on feel left out. It's not intentional, it's just workload. I know that all the people I deal with in the provinces want to improve that, and will be working toward getting a more consistent information system out to all victims of crime.

With respect to the bill, we haven't tried to limit it to victims of violent crime. The provisions, with the exception of a few that amend provisions that already apply to sexual offences and personal violence offences.... I'm thinking of the cross-examination of a young victim, for example. Otherwise, we haven't made a distinction based on the level of offence.

Mind you, when we're talking about victims' safety at bail, and where detention is an issue, those will tend to be violent offences anyway. For the more minor offences, the person will be released more or less automatically, with a promise to appear or whatever, and there won't be a concern about violence in those situations.

Otherwise, this package and the provisions we already have in the Criminal Code are meant to apply to victims of any offence, regardless of its more serious or more personal nature.

The Chair: Thank you.

Any other questions?

Mr. John McKay: I have one bizarre question.

The Chair: Let's hear your bizarre question. It's always interesting.

Mr. John McKay: Yes, always bizarre.

• 1650

I had a constituent in the office a few months ago. Her son was murdered in North Carolina. By the time they got the body back, buried him, and so on, the bill added up to about $15,000. The accused man was ultimately found guilty. I don't know what the sentence was, but part of the sentence was that his prison per diem or whatever it was had to to be garnished by x percentage, which of course would be an insignificant amount of money.

So every three months she gets this ridiculously small cheque in the mail. I think of it as almost a re-victimization, because every three months she's reminded that her son's killer is in jail, and they're sending this ridiculously small amount of money.

I wrote to the state attorney and got no satisfaction, of course.

I'm curious; could that situation conceivably occur here?

Ms. Catherine Kane: Garnishment of a prisoner's wages? Yes, it could, I understand.

That may be something you want to raise with officials when you're considering the CCRA. Another option that might be considered by your constituent would be the criminal injuries compensation program in North Carolina. Now, this is based on information that might be a bit outdated, but we had been involved in the past in an international association of criminal compensation boards, and I believe they have legislation that covers non-residents—

Mr. John McKay: Oh, really.

Ms. Catherine Kane: —as long as the crime is committed in that jurisdiction. So it may be worth pursuing.

If she got compensation from the state board, the offender's paltry cheque could then go to reimburse the state agency rather than having her receive a small amount.

Mr. John McKay: I wish the state attorney had written me to that effect, because I think that's actually good advice.

Ms. Catherine Kane: Another avenue would be the U.S. Office for Victims of Crime, because they would be able to tell you, probably in a matter of minutes, what the entitlements would be under North Carolina legislation.

Mr. John McKay: Thank you.

The Chair: Mr. Cadman has a quick comment.

Mr. Chuck Cadman: Yes, thank you.

Looking at it from the other side, I can tell you that a lot of victims would understand.... I mean, there are a lot more reminders day to day through your life that you're dealing with that kind of loss. To get a cheque of a minuscule amount every month would not be a real offence to most victims. It would indicate that the offender is being held accountable all the way through.

Mr. John McKay: I suppose that's right. It could cut both ways.

Mr. Chuck Cadman: Yes, and I'd say it would go that way in more of the cases I'm familiar with. If people are getting a nickel-a-month type of thing, it's just that constant reminder that, yes, he is being held accountable, all the time through. He's not being allowed to forget it.

I think a lot of victims would take a certain amount of solace from this. It's not retribution or anything; it's just saying that person is being held accountable, and there's the constant reminder—every month, a cheque for a nickel.

The Chair: Thank you, Mr. Cadman.

Ms. Kane, Mr. Roy, I very much appreciate your participation in a full and frank discussion today. You've certainly contributed—again, on short notice.

Ms. Catherine Kane: Thank you.

The Chair: Perhaps I could impose on the committee for just two seconds. We have to review a witness list for some additional witnesses on Bill C-79.

Any comments? Otherwise, we will proceed.

Mr. John McKay: Where's our witness list?

The Chair: It's being circulated as we speak.

We had an extensive consultation on this issue last year. It's a question of how extensive you wish these consultations to be. They can be as extensive as you desire, but we don't necessarily have to be repetitious, either. With that in mind....

Mr. Chuck Cadman: That would be one of the first things I would think about before we do a long song and dance on it. How much do we actually require?

The Chair: I will take some guidance on that. We don't want to cut the committee time short, but we don't want to unnecessarily prolong it and duplicate our efforts.

• 1655

Mr. John McKay: You have seven categories here. Is there a means by which the groups could amongst themselves pick out one organization to speak about the bill itself, as opposed to asking five people to talk from a victim's perspective? Or look one of the lawyers' organizations; you have seven.

The Chair: My preliminary comment is that these are suggested witnesses. Not all these people will or can be witnesses. They are not on the list to come; it's the possibility of them coming. Not all may accept.

Perhaps Marilyn can comment on whether it's good to pick one from each category or whether we need more balance than that.

Ms. Marilyn Pilon (Committee Researcher): I think the committee could certainly narrow the choice, or pick. I think it might be asking a bit much for the groups to make that choice.

Mr. John McKay: Okay, that's fine.

The Chair: Ms. Bakopanos.

Ms. Eleni Bakopanos: I've been told there are some attorneys general who would like to appear.

The Chair: We have a policy on that, Ms. Bakopanos.

Ms. Eleni Bakopanos: No, I know. Call them public servants, then—maybe “attorneys general” is political—from the different provinces.

Mr. Chuck Cadman: You mean their staff?

Ms. Eleni Bakopanos: Yes, from the different provinces.

I'm just putting that on the floor for discussion.

Mr. John McKay: I think that's not such a bad idea for the simple reason that this thing will stand and fall on how well the provinces administer this.

Ms. Eleni Bakopanos: Yes.

The Chair: Perhaps you could advise the clerks as to which ones, and we could make enquiries again. I would suggest that we keep within our policy of hearing from administrative staff as opposed to the political element.

Ms. Eleni Bakopanos: Yes, non-political. There's no question about that.

Okay. I will get back to the clerk.

The Chair: Do we have consensus, then, that we perhaps try to pick one or two from each category?

Mr. John McKay: I'm just going through this, and my quick response is that out of the victim's list, you have to have CAVEAT. I don't really know enough about the others to comment.

On the police, I think I would just go with the chiefs, or...but I don't know which one is better—

The Chair: You might have political problems there.

Mr. John McKay: Maybe you're right; I don't know.

I would go with the Canadian Bar Association as one of them. I also think you have to hear from the defence lawyers.

Ms. Eleni Bakopanos: The Barreau du Québec.

Can I make a recommendation? I don't think we've proceeded this way in the past, but it might be a way for us to give the opportunity to those who absolutely, positively want to appear, but those who feel that what they've said already at the round table is reflected in this legislation.

I don't know quite how to word it, but perhaps through a letter or fax, or whatever way we communicate with them to appear before the committee, we can ensure that they've taken the time to read what are the proposed changes, and if in those proposed changes there's anything new they wish to bring to the attention of the committee that hasn't already been brought to the attention of the committee, any new element, we can then choose from those who really feel something has to be revisited in terms of the legislation we have put before the House of Commons.

I know, Mr. Cadman, you have raised a few issues in the House of Commons. Maybe those groups that feel the same way you do, or other members of your party, could perhaps be those that come before this committee. Rather than revisiting the whole package, revisit those areas where there is need for discussion.

Mr. Chuck Cadman: I'm taking a look at the victims' groups. I realize CAVEAT is one of the larger groups, but CAVEAT's been around since 1991, and Victims of Violence has been around for twice as long as that. The Resource Centre for Victims of Crime has been around for quite some time, and they do a lot of legislative work that the other ones don't.

So I'm just looking at it from the victims' groups. Maybe it would be more appropriate to have them all appear at the same time and come together with some type of combined submission—

Mr. John McKay: Or invite a joint submission.

Mr. Chuck Cadman: —as opposed to going on for days and days.

Ms. Eleni Bakopanos: But what I'm saying, though, is to limit their discussions to those areas.

Mr. Chuck Cadman: Yes, and bring forth their concerns.

Ms. Eleni Bakopanos: I mean, if we're going to start from zero again, there's no point. I think we have consensus in this committee on a lot of the points that are within the piece of legislation.

Mr. Chuck Cadman: We could ask them to sit down and say, okay, this is where we have the problems. Then they could all come together and deal with specifics.

Ms. Eleni Bakopanos: Yes, that's right, and what their proposals are in terms of making amendments, then, if they do have a problem with certain clauses, and to limit it to that.

I don't know if that's possible. I know it hasn't been done before, at least in the time I've been sitting here as a member of this committee, but it would certainly facilitate our work. There is a lot of consensus in terms of this piece of legislation, and we all want to make sure it does become the law of the land.

The Chair: Any comments from our researcher?

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Ms. Marilyn Pilon: It's not uncommon to ask in a letter to potential witnesses to limit themselves to the bill. I think that wouldn't be inappropriate in this case.

Ms. Eleni Bakopanos: I'm narrowing it even more than that.

Ms. Marilyn Pilon: Limit it to suggestions.

Mr. John McKay: Could we not say in the letter to all of these people that we have a huge witness list from May and June of last year—

Ms. Eleni Bakopanos: That's right.

Mr. John McKay: —and we would like where possible to receive joint submissions?

A lot of these people don't have unlimited budgets, and for them to go chasing around....

Ms. Marilyn Pilon: If the committee expects to hear from them in, say, the next two to three weeks—I don't know how quickly you intend to proceed—many won't be able to respond simply because of the timeline, and there may be some flack coming out of that.

That's just by way of a warning.

Mr. John McKay: Well, a lot of what we do here is therapy.

The Chair: Okay.

Do you have sufficient instructions on how to craft your letter? God bless you.

Mr. John McKay: And good luck.

The Chair: A final point is that we anticipate having by Friday, we hope, the report on impaired driving. It will be circulated and we'll open for a discussion of the report next week sometime, we hope.

Mr. John McKay: Derek's back on the committee. Gosh, we'll have to go over it all over again.

The Chair: There being no further comments or business, the meeting is adjourned.