JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, April 22, 1999

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[English]

The Chair (Mr. John Maloney (Erie—Lincoln, Lib.)): I call the meeting to order.

I'd like to welcome the Honourable Anne McLellan, the Minister of Justice, and again Ms. Kane and Monsieur Roy.

Thank you for being with us.

I understand, Madam Minister, you have a presentation to make. We welcome you to commence.

Hon. Anne McLellan (Minister of Justice and Attorney General of Canada): Indeed.

[Translation]

Thank you very much, Mr. Chairman and committee members. I would like to begin by telling you how much I appreciate the level of effort and co-operation on the issue of the status of victims in Canada's criminal justice system and, particularly, your interest in this bill. Thank you.

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[English]

Mr. President and members of the committee, I am encouraged by the positive response these amendments have received, both from members of the public, victims, and victims' advocates, and from members of Parliament of all parties.

Some members may have specific comments or concerns about the details of this bill. I hope to be able to respond to those this morning. I also anticipate that the committee will hear from witnesses to explore in detail how these amendments respond to their concerns.

The provisions of this bill should be very familiar to this committee. The amendments reflect in legislative language the recommendations you made last October. These recommendations respond to the information you gathered from victims of crime, victims' advocates, victims' service providers, members of the bar, and many other interested persons.

I commend all members of the committee for your strong interest in and thoughtful consideration of all the submissions and for your thorough review of the victim's role in the criminal justice system. As a result of your work, the amendments I have introduced will ensure a better balancing of interests in the criminal justice system—a balancing that includes the views and concerns of victims of crime.

I appreciate the support the Reform Party has indicated for these amendments and their efforts to raise awareness about the need to change attitudes within the criminal justice system to benefit victims of crime. I want to point out, however, that this legislation is not a victims' bill of rights. This committee was mandated to explore this issue, and this committee did not recommend a bill of rights.

This committee recognized that responding to the needs of victims is a responsibility we share with the provinces and that the provinces have primary responsibility for services and assistance, law enforcement, prosecution, and providing specific information to victims. This committee focused on measures that could be pursued by the federal government. Bill C-79 and its amendments respond to those recommendations, calling for amendments to the Criminal Code.

Statements at second reading debate suggesting that other features of the bill of rights should be included in this bill, and that references to the jurisdiction of the provinces and territories are excuses, cannot stand without comment from me.

The division of powers between the federal and provincial and territorial governments is the constitutional reality to which we are committed in relation to legislation and policy work. I am highly sensitive to the level of cooperation and consultation necessary in dealing with issues related to victims of crime.

In addition, with respect to jurisdictional issues, you are of course aware that a subcommittee of this committee is reviewing the Corrections and Conditional Release Act. The recommendations of this committee regarding the victim's role at parole hearings and regarding the information a victim should receive about the offender's incarceration will be thoroughly canvassed in the context of that review.

To respond to the criticism that amendments to the Corrections and Conditional Release Act should have been included in Bill C-79, I would point out that this would usurp the role of the subcommittee tasked with examining all aspects of the Corrections and Conditional Release Act. The government's response to Victims' Rights: A Voice, Not a Veto, made this abundantly clear.

So it should not come as a surprise to anyone that Bill C-79 deals with only Criminal Code amendments. The Criminal Code is my responsibility, and I am eager to move forward with these amendments now.

I know you have been provided with an overview of the bill by my officials. While I would be pleased to answer any questions you may have, I do not intend to discuss the details of each provision.

I would like to highlight a few issues that were raised at second reading.

First of all, the government was criticized for moving too slowly and for not following through on commitments made in 1996. I have followed through on the commitment made by my predecessor, Allan Rock.

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Mr. Rock supported the motion to refer the issue of the victim's role in the criminal justice system to this committee. He undertook to raise with provincial and territorial colleagues the need to work together, given the shared jurisdiction for the criminal justice system. Within one month after making this statement in 1996, a federal-provincial-territorial working group was struck. I have encouraged the continuation and indeed the expansion of this working group.

As this committee is aware, the interim report of the working group, which I submitted to provincial and territorial ministers in December 1997, was shared with this committee. The views and interim recommendations of that working group are consistent with the recommendations of this committee.

As you also know, this committee was tasked with conducting the review of the victim's role in the criminal justice system. Upon receipt of your report in October, I proceeded immediately to prepare the government's response. I did not wait 150 days. This is one of my key priorities, and I was eager to move ahead.

The legislation introduced last week cannot be criticized as long overdue. If I had tabled legislation one year ago, I would have usurped the role of this committee, and more important, I would not have had the benefit of your hard work and of the consultation process your review provided. This bill is better because of your work and because I did not rush in with quick fixes.

Concerns were voiced about the proposed definition of “victim”. This is not an issue that this committee canvassed. The need to clarify the term “victim” was highlighted in the drafting process, because the word “victim” was specifically included in the provisions of the code, which operate prior to a conviction. The code has traditionally used the term “complainant”, usually to refer to victims of sexual offences.

I know victims do not want to be referred to as complainants. The definition we have proposed does not set out who is or who is not a victim. Common sense and understanding will dictate who a victim is. The definition seeks only to clarify that the term “victim”, when used in the Criminal Code, includes a victim of an alleged offence.

This definition is necessary to preclude an argument—for which I have very little patience—that there cannot be a victim until there is a conviction. There may be a victim even where there is no accused apprehended, charged, or convicted. However, there is no offender until there is a conviction. The amendment will address this potential problem.

Note also that for the purpose of victim impact statements, the expansive definition of “victim” remains in the code with a small but significant amendment. “Victim” means a person, rather than the person, to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence. Where that person is dead, ill, or otherwise incapable, “victim” includes the spouse or any relative, anyone who has the custody of that person, or anyone who is responsible for the care or support of any dependant of that person. This definition governs the victim impact statement provisions at sentencing, at disposition hearings for mentally disordered offenders, and at hearings for judicial review of early parole eligibility.

The second reading debate also raised the issue of the office for victims. The government's response to this committee's report indicated our intention to establish a policy centre for victims' issues, within the Department of Justice, to fulfil three broad objectives: to coordinate all federal victim initiatives and act as the victim's lens; to facilitate and support a federal-provincial-territorial network to work together to bring about overall improvements; and to liaise with representatives of all components of the criminal justice system to ensure their views are considered, to discuss emerging issues, and to work collaboratively. This is an appropriate federal initiative, and work has already begun.

The model of the Correctional Investigator was considered by this committee—that is, an adaptation of this model to provide victims of crime with a contact or ombudsman in the federal government. As this committee's report notes, this may be an option to address the need for information about federally incarcerated inmates, and this will be explored, I am sure, in the review of the Corrections and Conditional Release Act. It is not an option to address the concerns of victims about their involvement in a particular case, because only the provinces can provide those answers. Again, this is not passing the buck; this is the constitutional reality of our country.

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[Translation]

In conclusion, I encourage you to carefully examine Bill C-79 which, in my opinion, speaks to the recommendations of this committee.

[English]

In closing, I would encourage you to carefully review the provisions of this bill and to hear from interested witnesses. I believe you will find that this bill reflects your recommendations and that, coupled with the current code provisions, it will result in significant improvements for victims of crime.

I want to assure you that I do not regard Bill C-79 as the end of my work. This is one of my key priorities, and I regard Bill C-79 and the non-legislative initiatives discussed in our response as the beginning of an ongoing process to reflect the views and concerns of crime victims in criminal legislation and policy.

Mr. President and members of the committee, thank you very much. I look forward to hearing your comments, questions, and concerns.

As you've indicated, Mr. Chair, I have with me today Madame Kane and Monsieur Roy, who will be happy to answer questions along with me.

The Chair: Thank you, Madam Minister.

We'll start with seven-minute rounds.

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

Thank you, Madam Minister, for taking time to come and see us—

Ms. Anne McLellan: My pleasure.

Mr. Chuck Cadman: —even though it didn't look like we were going to get going.

I have a couple of questions.

The first one I actually brought up yesterday with Ms. Kane. I would like to get your feeling as to how far the definition of “victim” should extend. I made a point yesterday of being concerned about the person who reads or hears about a specific, particularly heinous incident and feels they've become emotionally involved with it and basically tries to be.... It's ridiculous, I know, but we all know how crazy some things can get, and I'd just like to get your ideas on that.

Ms. Anne McLellan: As I mentioned in my comments, we have avoided defining “victim”. This is something that will ultimately be resolved before a court, if the question arises. We leave it to the commonsense, general understanding of the judge ultimately, if there is a dispute, for example, as to who might get to come forward and provide a victim impact statement.

Rather than providing a definitive definition that runs the risk of perhaps being either too broad or too narrow, as with many other important aspects of the administration of the criminal justice system, it is better to leave those issues for ultimate resolution by the court. I would think that a judge, on hearing from someone who perhaps lives in the community but has no apparent more direct involvement, would assess that situation and conclude, based on his or her assessment, whether or not that person could reasonably be considered a victim for the purposes of one or more provisions of this legislation.

That's why we have chosen the approach we have. I think it is one that will work. It's one that has also served us reasonably well in the past. I don't know whether Catherine or Yvan are aware of any problems courts have faced in the daily administration of our existing laws as they relate to victims, but I think those problems, if any, have been very few. That speaks to the fact that in situations such as this, in my own opinion, it is better to provide the judge with some discretion, based, as I say, on common sense and a complete understanding of the factual situation before the court.

Yvan, is there anything else you want to say?

Mr. Yvan Roy (Senior General Counsel, Criminal Law Policy Section, Department of Justice): No.

Mr. Chuck Cadman: Don't get me wrong; I'm not trying to have it broadened. I'm aware that on occasion the courts may refer to what the committee was talking about when we were dealing with the legislation, what Parliament was actually thinking. I just wanted to get your thoughts on the record on this.

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Ms. Anne McLellan: I would say one thing. If you look at our legislation, clause 1 of Bill C-79 says “`victim' includes...”. So as I say, this is not a definitive definition, but it includes the victim of an alleged offence.

Before conviction, all one has is an allegation that a crime has been committed, that an offence has taken place. But it's a matter of common sense that someone has suffered injury, that someone has been assaulted, that someone's home has been broken into and they have been traumatized. That is a factual event that has come into existence. Therefore there is pain, there is hurt, there is a victim.

It's in a set of different questions whether someone is charged, whether someone is convicted, and whether one has an offender, but in those kinds of circumstances, you have a victim, in any commonsense interpretation.

Mr. Chuck Cadman: My second question deals with the recommendation the committee presented dealing with the victim fine surcharge. The committee recommended that it be applied to the Young Offenders Act and, by extension, to the new youth act. I'd like to get an understanding of why that wasn't included. Was that an oversight, or are there plans to deal with that in the new act?

Ms. Anne McLellan: In fact, as you know, we have changed the victim surcharge so that, in relation to adult offenders, it is automatic now. In terms of the Young Offenders Act, there are provisions in that act that make it discretionary. So we have made a distinction between adult offenders and youth offenders in that very important regard. Committee members should be aware of that.

The discretion is provided in the youth justice system because I think most of us in this room—probably all of us in this room—hold the view that it is important to have a separate part of our criminal justice system for young people who break the law. To that end, we have decided to have victim surcharges discretionary as they relate to young offenders, to be imposed where the judge thinks some purpose would be served by imposing the victim surcharge.

I think we probably all realize that with many of these young people, a victim surcharge is not going to be helpful in terms of that person taking responsibility or being held accountable. It's not going to help rehabilitate that person. It may be a young person of very poor circumstances, either economically or emotionally, or whatever the case may be. Consequently, in terms of the youth justice system, we felt we should make it discretionary.

Of course there will be cases where a judge would find it most appropriate, and society would find it most appropriate, for a surcharge to be imposed, where a fine is imposed on a young offender. But there will be other cases where it isn't, and we wanted the court to have that discretion, acknowledging the fact that we do believe a youth justice system is premised on the principle that in at least some important regards, young people should be treated differently.

Mr. Chuck Cadman: Would you not agree that, regardless of the age of the offender, a victim is still produced, and the offender still has some obligation towards the victim?

Ms. Anne McLellan: Oh, I don't disagree with that. In fact that's why you see in our new proposed youth legislation an emphasis on attempting to develop strategies in which victims play a larger role in helping young people take responsibility for their actions—for example, sentencing circles, family group conferencing, youth justice committees, and diversion programs into the community, which may or may not involve victims if they choose.

I believe fundamentally that, especially with young offenders, they do have a responsibility to understand the harm they've done, because I think they are more susceptible to meaningful rehabilitation. If they understand the harm they've done to someone and if they are expected to help repair the harm, they may be much less likely to pursue a life of crime.

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Keep in mind that the victims of those who commit youth crimes have access to the victims' funds and services available in the provinces. The provinces make no distinction among victims on the basis of whether the person is a victim of a young offender or a victim of an adult offender. That pool of resources created by victim surcharges, plus any additional resources the provinces choose to put in—and they all do, I think—is available to all victims of crime.

I understand the point you are raising, but we have chosen to make that distinction: it's automatic for adult offenders and discretionary for young offenders.

The Chair: Thank you, Mr. Cadman.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Thank you very much, Ms. Minister, for your statement. As you know, the Bloc Québécois really has no reservations with respect to the bill as such; in fact, it addresses some questions that we have been asking since 1993.

I have a lot of questions concerning the Policy Centre for Victims. You mentioned this, without giving any details, no more than in your April 15, 1999 press release. You said that the new Centre would also be called upon to manage, coordinate and increase federal initiatives related to victims, and you are repeating almost the same thing today.

My question is very simple: what are your intentions?

[English]

Ms. Anne McLellan: First of all, when we talk about the victims' policy centre, keep in mind that these are the early days in the development of the terms of reference and the work plan for the policy centre. But I am very sensitive to the fact that the primary jurisdiction over victims' issues does rest with the provinces, and they are indeed the purveyors or providers of victims' services in almost all cases.

However, when you and your subcommittee look at the Corrections and Conditional Release Act, you may well want to consider the role of the victim and the services, if any, that might be required during the parole process. I look forward, as I'm sure my colleague, Lawrence MacAulay, does, to advice you might have for him and for the Government of Canada in relation to that, which is clearly an exclusive aspect of federal jurisdiction.

But obviously the administration of the criminal justice system, the code, is a matter for the provinces. As long as we understand that there are different jurisdictions here and we are respectful of each other's jurisdictions, that will help us in determining the appropriate terms of reference for the victims' policy centre and then the work plan my officials will develop.

Our first priority in relation to the victims' policy centre is to ensure that federal policy, legislation, and programming are looked at through what we call the victim's lens.

For example, right now in my department we have a gender policy unit that looks at what we as a federal government do that has unexpected impacts on the two sexes. I see the victims' policy centre providing my colleagues, as they develop their legislation and their policy initiatives that are within federal jurisdiction, with the same kind of guidance and import, so that we don't unwittingly make life more difficult for victims in the way we develop our policies and put together our legislation, or even in some of the programs that other departments might run or provide. I see that as a key function.

In terms of research, as you know as well as I do, the area of victims' research is an emerging area. It is a relatively new area, and we would want to work with the provinces. In fact I have heard very little dispute of this from the provinces. We can work together to ensure we learn more about the role of the victim and the impact of crime on the victim in society.

Then, after bringing that research together, in some cases facilitating it, and sharing it, we can see how each of us in our respective constitutional jurisdictions might make that research concrete in terms of policies, programs, and services. That would largely rest with the provinces; I would be the first to concede that.

There's also a role to play in bringing together a network of national victims' organizations that transcend any provincial boundaries. There are national organizations that represent victims regardless of where they are found, and then there are provincial chapters of some of those organizations, which work more closely with provincial governments in dealing with issues directly, such as services or gaps in services for victims.

The federal government can play an important role. In fact we're probably the only government that can facilitate those national organizations coming together in the form of a network to raise issues for both federal and provincial governments so that we can bring these forward, either federal or provincial colleagues, at our justice ministers' meetings, Sol Gen meetings, or whatever the case may be.

For me it is very clear: the provinces have primary jurisdiction, but there is a role for the federal government. Our policy centre will be working with victims, the provinces, and others in terms of our role in relation to issues surrounding victims.

I have no desire, nor do I have the resources, to invade provincial jurisdiction. In fact, on that point, let me say it was only through agreement with the federal government that victim surcharges.... Although they are surcharges imposed through the Criminal Code, in fact we have provided the means by which all those resources, limited as they may be right now, go to the provinces. We gain nothing from that.

[Translation]

Mr. Michel Bellehumeur: Ms. Minister, I am in no way questioning the federal jurisdiction, nor the role that the federal government must assume with respect to the Criminal Code or to legislation in its field of jurisdiction. However, I am questioning the advisability of establishing this Policy Centre for Victims. In view of what you have just told us, Ms. Minister, it would be worrisome if that did not occur. If there is not, in each department, the willingness to involve victims and others, while the studies show the importance of this step, there is a problem.

I do not understand that we have to have this great legal auditor to ensure that the political will is reflected in this bill that we are adopting. Finally, you have told me that there will be a large office directed by an overall supervisor, which will review proposed legislation to ensure that victims' points of view are considered and that they will have some input into this law or into new initiatives that will involve them.

At the end of the line, the ice is so thin for the Policy Centre for Victims, that there is a danger of infringing upon provincial jurisdiction. The line is too thin. A little while ago, I listened to the Reform Party members discuss the definition of the word "victim". We would have to review the definition of "victim" in provincial legislation to understand what you mean to say. The ice is so thin that your Centre will cause the minister and the Department of Justice to, willingly or not, infringe upon areas of provincial jurisdiction. We will be quarrelling again.

The provinces that already have offices, like Quebec, will once again incur financial penalties because you will give priority to provinces who have nothing, as you did with the Young Offenders Act. For years, you give the priority to provinces who did not apply the Act and who invested in concrete rather than prevention. Quebec had chosen to invest in prevention. It would seem obvious, according to the information that you have provided me, that this Centre, which is not justified, will once again provide an opportunity to intervene in areas that are none of your business.

[English]

Ms. Anne McLellan: Indeed all I can do, Monsieur Bellehumeur, is provide you with the reassurance that I have no desire to infringe upon provincial jurisdiction. In fact I am one of those who tries very hard to be respectful of provincial jurisdiction. Obviously you and I may choose to disagree on whether there's a need for a victims' policy centre within the Department of Justice. I think there is, and the committee thought there was.

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I guess what I can say to you is that I will do everything in my power, and my officials will be instructed to do everything in their power, to ensure that we work in a complementary fashion with the provinces, acknowledging each other's respective jurisdictions.

The other thing I would say, Monsieur Bellehumeur, is this. I do not want to get into a debate here, but I have had the opportunity to talk to representatives of victims' groups from the province of Quebec and individual victims, and they argued very strenuously for a strong federal role and a victims' office, because they do see an important federal role in this area, for anyone whose needs are not presently being met by the Quebec victims' office.

Of course we pass legislation within our jurisdiction into which the victims' office in any individual province will not necessarily have any input. They want to make sure there is somewhere within the federal government where the issues surrounding victims are in fact taken into account when we pass our legislation. I don't think that's unreasonable, and I am certainly willing to provide that to victims.

The Chair: Mr. Bellehumeur, I think we'll have to move on. We'll get to you in the second round. Thank you.

Mr. Peter Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you, Mr. Chairman.

Thank you, Madam Minister, for coming before us, and thank you for your complimentary remarks on the work of the committee in putting together the report.

It's interesting. As we proceed, the definition of “victim” seems to be rising in prominence, and it does for me as well. I alluded to it in my own remarks yesterday. It is going to be important in terms of how it's interpreted. I'd ask for your comments.

First of all—and perhaps staff can help me with this—I have a question about the discretion given to the police when determining the release provisions upon arrest. It is a recommendation of the committee that the police ought to take into account the safety of the victim upon release. But we are handing to them, I suppose, the discretion to determine who's a victim at the time of arrest, at the time of the commission of a crime. So I see some importance in the definition of “victim”. I would be interested in comments on that. We can explore that further in committee.

I have two other questions. One is related to the surcharge. I don't know if it's possible to estimate how much revenue that would generate, going toward services in the province. I see—and I said this is my comments—the crown office, for which the province has responsibility, requiring some funding.

Secondly, I understand that with the victim surcharges, there is discretion where it would provide undue hardship. I just want to clarify that.

Ms. Anne McLellan: Yes, although it's automatically imposed, and the onus would be on the adult offender to say this would create undue hardship and make that case. If that doesn't happen, it's automatically imposed.

Mr. Peter Mancini: Okay. That's the clarification I was looking for.

So there's the question on how much revenue would be raised by the surcharge tax, and I'd like to know if you have any thoughts on the police discretion in determining who's a victim at the time of arrest.

Ms. Anne McLellan: Let me deal with the last question first, and then maybe I'll let Catherine or Yvan deal with the first one.

In terms of the victim surcharge, the existing charge has been applied sporadically and not consistently across the country. And even where imposed, collection by the provinces—because that's a provincial responsibility—has also, I think many provinces would concede, been somewhat sporadic and ad hoc.

So with the new victim surcharge provisions, if the provinces choose to pursue these matters with diligence, the same way they pursue the collection of fines, for example, that are imposed at sentencing, the opportunity exists for quite substantial increases in the dollars that provinces would have at their disposal.

In fact we have done some preliminary work on what we think those estimates might be. I don't have them here today, but Catherine or Yvan can probably tell you what they are. It is quite a remarkable increase in the potential amount of available resources that go directly then to the provinces and the territories, and under the agreement we have with them, they have undertaken to use that for victims' services. They cannot, as I understand it, use that funding for other things; it has to be related to the provision of services for victims.

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This is one of the things the provinces wanted changed, because they knew the existing surcharge provisions were not working, so we've gone to the automatic imposition. But the provinces also acknowledge it is their jurisdiction to collect it.

They're moving. They're moving in lots of directions. In fact we facilitated that in Bill C-51, which you considered some time ago. For example, if someone goes to apply for the renewal of a licence and they have outstanding fines, they may not get their licence unless they pay their fines. More and more provinces are taking these kinds of approaches. It's up to them, but more and more provinces are taking those kinds of approaches to collect fines that have been imposed through the judicial system. Certainly the surcharge could be collected in exactly the same way.

Mr. Yvan Roy: Actually, Minister, it enhanced the ability of the state to collect those fines, not only by having to wait until the person comes for renewal of his or her driver's licence, but it is possible under the law now to suspend those driver's licences when the fine hasn't been paid in due course. So that is going to significantly help the provinces collect those fines and the victim fine surcharges.

Perhaps Catherine can quote a figure we have come up with. There are all sorts of caveats that should be given with that, but I'm going to let her make the presentation.

Ms. Catherine Kane (Counsel, Criminal Law Policy Section, Department of Justice): I neglected to bring my chart with me, but I can do that at the committee's next meeting.

Our statisticians took a look at all the conviction data currently available from provincial courts and some superior courts. We don't have the complete picture, because not all jurisdictions provide the same data. Then they assumed a certain level of default and they assumed a certain level of undue hardship, they imposed the various mandatory minimums we have in the new legislation, and as a national figure, it's estimated that $12 million could be collected. But as the minister indicated, this requires some efforts on the part of the provinces to collect and not to rely on voluntary payment.

Then within different jurisdictions, of course it depends on the conviction rate, but the three that come to mind are Ontario, which we estimate would be $5 million; British Columbia, $1.5 million; and Alberta, $1 million. As I said, next time I would be happy to bring the table that breaks it down.

Mr. Peter Mancini: That's fine. I can contact you personally.

Ms. Catherine Kane: Sure.

Mr. Yvan Roy: Do you want me to try to answer your first question?

You will remember that just a few years ago, Parliament amended the Criminal Code on a couple of occasions to give the police the power to release someone into the community, after the person has been arrested, without having to go in front of a justice of the peace to have the conditions set. That was done in essence to benefit the offender, in that the offender would not have to spend the night in prison for basically nothing, because when they appear before the judge, in some cases at least, it is automatic. It's only to have very specific conditions that are in the code imposed.

You have, obviously, action-reaction. This is a reaction to that power that was given to the police, to ensure they at least address their minds to the situation of the victim. When we're talking about that context, particularly in the situation of domestic violence, it is important that the police think about the people who are left behind when they release the person back into the community. It's to make sure they think about having the appropriate conditions so that the person who is to be released does not bother the victims.

Your question is, how broad is that? Well, I think we will have to leave that to the practice in the next few months to see how it's going to shake out. But let's be very aware of the fact that it's not only a decision by the police that is made at that stage. If the person is not satisfied with the conditions, he or she can make an application before the judge for these to be corrected, if they go too broad or if they cover too many people.

So for instance, just to take an extreme example, if the police were to say the person is not to live in the city of Toronto, that may be a little bit too much, because not everyone in Toronto is a victim of that particular offence, whatever it is. The person would then have an opportunity, immediately the day after, to go before a judge to have this changed.

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Providing the flexibility is important so that a reasonable approach is taken, but there are some mechanisms in place to correct mistakes that are made if the police simply are going too far with these conditions.

Trying to come up with a rule that would be more rigid than what we have would be difficult. You know that as well as I do; you have practised in the courts. There is room here for the courts and the police to adjust, and I think it's going to happen very shortly after the legislation is passed, if it is passed.

Mr. Peter Mancini: Okay, thank you.

The Chair: Thank you, Mr. Mancini.

Mr. Peter MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair. I as well want to thank the minister of course for her appearance here. We always appreciate hearing from her.

Ms. Anne McLellan: It's a pleasure to be here, Mr. MacKay.

Mr. Peter MacKay: I'm sure.

Ms. Anne McLellan: Always.

Mr. Peter MacKay: And I'd like to thank your officials as well. They've been extremely helpful. Their testimony yesterday clarified a number of things.

I would like to ask a couple of specific questions. I don't want to unduly prolong this discussion or debate on the issue of the policy centre, but I'm very glad to hear you, in your remarks, recognize the fact that victimization begins immediately upon the incident, upon the criminal act, or if it never proceeds in that way, the act itself.

From dealing with victims and having been involved in this experience as a member of Parliament, I know the frustration begins almost immediately, and it is the early, late, and long-term ordeal that victims go through.

Without getting into this jurisdictional argument you embarked on with Mr. Bellehumeur about treading into the provincial realm, I still firmly believe that a central office with an ombudsman or a commissioner who could direct a victim in terms of the information they're requesting—and that may very well just be putting them in touch with the local crown attorney, the local victims' services office, or the provincial department....

You mentioned in your remarks having it based on the Correctional Investigator, and I think that is the model you would look at, in terms of fairness and in terms of budget.

This is not to in any way take away from the initiative of a policy centre, because that's certainly a laudable goal, but having this one central office I strongly feel would streamline the system.

Much of what victims feel—and we heard this at the round-table—is a sense that they are running into this mammoth system in a very emotional state and simply feeling frustrated beyond belief, because they can't get specific answers. Having an office where they could go and even be directed would go a long way to accomplishing some of the goals this legislation is certainly aimed at.

Again, I do not hesitate to compliment you for the efforts you've put forward, very genuinely. They are much appreciated by all. But having a central office, an ombudsman, with that specific mandate I believe would accomplish more.

Ms. Anne McLellan: I certainly will take under consideration the comments you've made. That's something the committee should turn their attention to—perhaps, for example, in the review of the work the subcommittee is doing in relation to the Corrections and Conditional Release Act, because it's from there that the model comes for this investigator.

I've explained the reasons we haven't chosen to adopt that model more broadly for our victims' office. Let me say this. I go back to the point that we are in the early days of working with those victims, victims' advocates, and others, who best understand and know most about this area, on what the terms of reference ultimately will be. We will also learn as we move along. There may be legitimate federal roles for the victims' office that at this point we haven't thought of, but that, within six months or a year, may become readily apparent to us.

So we need to start, not small, but in a responsible way, by working with all the key interested groups to develop appropriate terms of reference for the world as we understand it today, the conditions today, and our role. We need to start by delivering those services and that assistance to victims, and then see how we move forward from there.

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I'm not locked into any particular modality or form. We may decide 18 months from now that we need additional resources and we need to change the terms of reference and the work plan for the centre, because we may see a real, legitimate federal role in other areas. I'm not closing the door to what you are suggesting here. What I'm saying is, we should work responsibly and as quickly as possible to get our centre up and running and have it deal with the priority items identified by the committee in its report, and then we'll see where we go from there.

Mr. Peter MacKay: I appreciate your answer on that, and I know exactly what you're saying, but when I consider the creation of a new entity in the criminal justice system and putting a priority on what is needed most, I think of it in terms of what position would utilize the most. Certainly a model such as this policy centre, which is going to be an ongoing monitoring, coordinating, and liaison system in some ways....

But an office that would be used extensively—and I would suggest it would be—with a 1-800 number or something attached to enable it—

Ms. Anne McLellan: I don't think there's any doubt that once this office is up and running, it's going to be used. In fact we probably will find very quickly that there is tremendous demand for all sorts of things, such as guidance, assistance, or perhaps, as you say, just calling a 1-800 number to be referred to the provincial victims' services office.

In spite of what some might suggest, I think it's fair to say that wherever we travelled—particularly, I have to say, in the province of Quebec, where Jacques is from—we heard from victims that they felt a lot of their needs were not being adequately met. They felt there was a legitimate role for the federal government to create this kind of entity and provide them with a vehicle whereby they could pursue some of their concerns that they felt were not being dealt with.

I was struck by how strongly so many victims felt about the necessity for a federal victims' office, and I think that's why the committee made the recommendations it did: they heard that everywhere. Therefore we anticipate that this office will hear from a great many who have been victims of crime.

Mr. Peter MacKay: Can I ask a couple of very quick questions?

The Chair: Very quick, and very quick responses.

Mr. Peter MacKay: Yesterday I received much of what I expected on these questions.

In proposed subsection 486(1.1), there's reference to specified offences under the Criminal Code, such as section 271, and then it goes on to say, “...violence against the person...”. There was some concern about the possible exclusion of criminal harassment situations, which don't always involve violence per se.

In the next proposed subsection is another possible omission by leaving the age of 14 in place for the eligibility of a support person accompanying them in court. I realize there is still discretion, but it seems a potential anomaly that you wouldn't raise that age to 18 as well.

And in proposed subsection 486(2.3), why have any age limit for a person being exempted, upon judicial consideration, from cross-examination by the accused?

I'm wondering if those are at least still being considered by the department for our deliberations.

Ms. Anne McLellan: I'll let Catherine and Yvan answer those questions, but in relation to your first question about criminal harassment, it is our view that it is included within this legislation, in proposed subsection 486(1.1).

Mr. Peter MacKay: The inclusion of the violence?

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Ms. Anne McLellan: Yes. That is indeed included.

In terms of the age, before I let Yvan and Catherine respond specifically to your questions, you are probably aware that we are reviewing the entire code in terms of the various ages at which various sections of the code kick in or not. We're doing this in partnership with the provinces and the territories, which in fact have some very specific concerns.

It was decided that since we do have various ages for various things, why don't we take a look at that and see if there are ways we could further harmonize or make uniform some of these provisions? Let's go back and make sure that where the age is 14 in one case and 18 in another, the policy rationales for those distinctions are still justified. So that work is being done.

Do you two want to add anything?

Ms. Catherine Kane: I don't have anything to add to that.

With respect to your question about the personal cross-examination of complainants and why there's any age limitation, that is an issue this committee did explore, and as you are familiar with, there had been a private member's bill by Pierrette Venne seeking to do just that: to have no age reference in the code. The committee's recommendation was to increase the age to 18, given that it would be a more justifiable limit.

When you interfere with an accused person's right to make full answer and defence, including the right to defend themselves, you have to be able to justify that limitation. If we were to consider an amendment that opened this up to any victim or witness, we would have to consider putting a test in the Criminal Code for the judge to apply. Then it would be a case-by-case determination in all cases, rather than having this almost automatic protection for victims and witnesses up to a certain age.

From my extensive work with sexual assault victims, I know that generally they do not want it assumed that they are vulnerable or that they need this protection. Many of them are willing and able to withstand the rigours of cross-examination. However, there's a recognition that young victims should have this protection. If they don't want the protection, then that's fine; it won't happen. But we should at least offer that protection for those up to the age of 18.

Mr. Peter MacKay: I'm aware of other protections too. I know they have screens, and sometimes closed-circuit cameras are used.

Ms. Catherine Kane: Yes.

Mr. Peter MacKay: All right. That's fine. Thank you.

The Chair: Thank you, Mr. MacKay.

Mr. John McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman.

I've said privately and publicly that I think this is a great bill and you've done a terrific job.

I had a conversation with Mr. Justice Cory last night, he of the famous phrase that the charter is the means by which the courts dialogue with Parliament. I expressed to him the view that it seems to me it's mostly a monologue rather than a dialogue. I also said to him there's some frustration on the committee that we have “charter constipation”, to use Mr. MacKay's famous phrase.

Ms. Anne McLellan: Spoken like a true prosecutor.

Voices: Oh, oh!

Mr. John McKay: I notice that you have a preamble that's a page and a half long. That's a long preamble by anyone's standards.

I notice in the third paragraph you have nuanced, about as well as I could ever expect anyone to nuance, the conflict between the rights of the accused person and the rights of victims of violence and witnesses to offences.

I was wondering whether, as a point of drafting and as a point of thinking in the department, you have consciously decided that to expand the dialogue, if you will, between Parliament and the justices of the Supreme Court, in some respects you cannot capture Parliament's intention in the hard letters of the law, but you need to be able to say in another way that this is Parliament's intention.

Is this a direction, a trend, we can expect? Has this in fact been consciously thought out, or is this more accidental?

Ms. Anne McLellan: We don't think it's unconscious.

Voices: Oh, oh!

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

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Ms. Anne McLellan: That's actually a very interesting question.

Generally, in all honesty, there is this debate—not within our department, because we use preambles quite often. We talk about whether it's appropriate in this piece of legislation or whatever, but in fairness, I have picked up, across the system, a bit of a discussion about whether preambles are a good thing to include in legislation, and if so, why, and if not, why not. That comes up if you're amending the Immigration Act or the Citizenship Act or other things.

I actually think preambles can be very useful, in part for the very reason you have outlined. Specific sections of acts have to be drafted or should be drafted wherever possible with a great deal of precision. In a preamble, you are able to provide a court, or the public as far as that goes....

It should be written in a form—and I hope this is—that the public can pick up and say, “Okay, maybe I don't understand every reference here, but I get a pretty good sense from this preamble that you're telling me victims matter in the criminal justice system, and we're going to do things that will ensure that their voice is heard and that they're treated with respect, dignity, and compassion.” In fact those three words appear in this preamble. That is a very useful signal to send to the courts.

The courts do use these. We know they use these, especially, but not exclusively, since the time of the charter. They do refer to the preamble. Even before the charter, our courts referred to the preamble of the British North America Act in the distribution of powers and other issues.

So courts do use preambles. It provides them with the context in which we all, as legislators, were operating. It provides perhaps a more nuanced, integrated, holistic approach to the challenge we were facing as legislators, as well as stating our objectives in a general sense and how we hope to achieve them.

The courts turn to the specific legislation, and if there is ambiguity or confusion—although after the committee is done, there should be no confusion, but if there's an apparent ambiguity—they can attempt to resolve that ambiguity through reference to the preamble. That's very useful.

We see in this country, in constitutional jurisprudence and in other forms of jurisprudence, more and more reference to preambles to help the court get a better sense of the intent of the drafters.

I personally like them. They can be important. That's why it's here.

Mr. John McKay: His interesting comment was that he wanted Parliament to push the edges.

Ms. Anne McLellan: Well, he was certainly talking to the right committee members, wasn't he?

Mr. John McKay: Yes, he certainly was.

Ms. Anne McLellan: That's an interesting point on the part of Mr. Justice Cory. There actually is a dialogue between legislators and judges, especially the Supreme Court of Canada. Recent studies and other work, even just a couple of weekends ago, would indicate that in fact that dialogue is pretty healthy.

Mr. John McKay: Exactly.

Ms. Anne McLellan: And it should be encouraged, and I think that's what Mr. Justice Cory is saying: “Look, legislators, you have a role to play. Do not be shy.”

We have to be respectful of what the court has said. In some cases the court can provide us with guidance as to how we can draft legislation that meets our objective and also the objectives of the charter and other things. That's quite appropriate. But it's up to us then to decide ultimately how we act on that advice.

There's actually a growing dialogue between judges and legislators. It has to be in the appropriate forum. They do it through their judgments, by and large. We do it through our legislation. That's appropriate and that's healthy.

Mr. John McKay: Thank you.

The Chair: Thank you, Mr. McKay.

We'll start three-minute rounds, with the proviso that we have an outside limit of 1.15 p.m., so I'd ask that questions be succinct and to the point, and perhaps the responses as well.

Ms. Anne McLellan: The answers too, yes.

The Chair: Mr. Reynolds.

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): Mr. Chair, I'll be very quick. I just want to say on behalf of my party that we appreciate the work my colleagues from Surrey and Abbotsford have done. This bill, as the minister said at the start, is a very good beginning. That's all I have to say.

Ms. Anne McLellan: Thank you.

The Chair: Thank you, Mr. Reynolds.

Peter MacKay.

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Mr. Peter MacKay: That was very well said. I'm not going to prolong the minister's agony here at the committee. I heard her Nova Scotia accent coming out, though.

Ms. Anne McLellan: Oh, no!

Mr. Peter MacKay: She let out a big gasp.

I do commend the drafters of the legislation for some of the wording too, because in particular I remember phrases such as “directly or indirectly” taking away any ambiguity when it comes to contact in release orders.

I would like to expand very briefly on a question I had yesterday about contemplation of including restitution orders per se, and the use of restitution in this or other legislation when it comes to repayment of a victim for their actual loss. Nobody can compensate them for the emotional element, but I'll use the example of when their clothing items, jewellery, or property has been damaged or stolen. Was that contemplated, and is it still being contemplated?

Ms. Anne McLellan: Yes, it is.

Catherine, do you want to respond?

Ms. Catherine Kane: Yes, perhaps I could jump in.

The provisions of the Criminal Code were expanded in the sentencing amendments in 1995 to further expand restitution, but basically we've had a restitution provision in our code since 1953. Whether it's relied on or not is a matter of practice in the courts, but restitution is available. An order can be made for the person responsible to pay to the victim any amount of pecuniary damage. It's not a pain and suffering order; it's limited to the expenses you have suffered, but those expenses could be related to the fact that you needed rehabilitation or that you needed to hire somebody as a housekeeper or an attendant or whatever. So all expenses, short of pain and suffering, can be the subject of a restitution order.

Additional amendments were included to make it clear that in a domestic violence context, if, for example, a woman had to flee her home and set up a household somewhere else due to violence in her own home, those expenses were also compensable under a restitution order.

There is no limitation on the amount, but of course a judge will take into account whether the offender has the ability to pay that order to a certain extent. Otherwise enforcement of the order could be quite frustrating for the victim, and it will be the responsibility of the victim to enforce the order. The order is enforced in the same way as a civil judgment would be, so it is a sort of one-stop justice for some victims. If they get a restitution order, they can then file it immediately with the superior court of the province, and it can be executed just as if they had received an order in the civil courts.

Mr. Peter MacKay: Yes, I was aware of that procedure, and that I believe is more recent. It's been within the last five or six years that you can place a judgment at the prothonotary's office and have it registered almost as a lien on the person.

But I'm still concerned and a little bit—well, maybe skeptical is too strong a word—about the collection and enforcement of not only restitution orders, but these new victim fine surcharges. I keep in mind the jurisdictional aspect; it's going to be up to the diligence of the provinces. But it's the same old blood from a stone that you see in maintenance enforcement. The provinces have various sticks and stones at their disposal, but it's going to be very tough to get money from many of these offenders who are before the court, because they don't have money.

Ms. Catherine Kane: You're quite right that getting blood from a stone is often the problem in restitution orders. Some of our provincial colleagues have indicated that they want to explore better ways to enforce restitution on behalf of victims, to at least give them a bit of a leg up in terms of how to enforce it as a civil judgment.

There are no criminal enforcement models in the restitution provisions. As some of you may be familiar with, in the original victims' bill in 1988, we did have criminal enforcement provisions. They were never proclaimed, and that was due to significant concerns raised by the province at the time that the costs would outweigh the benefits of the provincial collection of restitution on behalf of a victim.

However, the civil judgment mechanism certainly predates the sentencing amendment. That has been the system in the code since the 1953 amendments—civil enforcement as the means of enforcing restitution orders.

With respect to surcharges, I think most of our provincial colleagues agree now that with the amendments to surcharge, it will be in their interest to increase their collection efforts, because they will see significantly more revenue. If they don't increase their collection efforts and raise their revenue, then their victim services will suffer, and they are certainly committed to improving their victim services.

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The Chair: Thank you, Mr. MacKay.

Mr. Jacques Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I have been referred to as the only remaining Quebecker at the table. I am perfectly comfortable, quite comfortable, with this bill, including the creation of the Centre. There are a number of reasons why I really have no reservations.

[English]

First of all, there are many examples of federal organizations that have been set up in either joint or shared jurisdiction areas. For instance, education is a provincial jurisdiction.

[Translation]

There is a Secretariat for Education, that the provinces do not challenge, and which serves them very well. We could also mention the agency that looks after the disabled. I don't think that the provinces have any complaints about its existence. We could speak about a great number of other agencies.

The creation of this centre is not the sensitive point in terms of respecting jurisdiction, rather, the issue is the mandate that it will be given. We will have to determine the mandate very carefully, and I have no reason to believe that this will not be done. A very legitimate sensitivity concerning provincial prerogatives should not become a dogma that paralyzes us. I believe that there is no problem in this regard, and I am thoroughly pleased with the bill.

Ms. Anne McLellan: Thank you.

[English]

The Chair: Thank you, Mr. Saada.

Derek Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you, Mr. Chairman.

I just wanted to make note of something. We appear to have on our record a quote from my colleague of a remark made by a Supreme Court of Canada judge in a personal conversation. While the remark was fairly innocuous, it's a poor precedent for this committee to be accepting into our record casual remarks from personal conversations of members of the judicial community. We should be very cautious about treading on that territory.

I'm sure His Lordship will understand what happened here, but the chair should be vigilant and we all should be. The fact that it has occurred may result in the impairment of informal exchanges of views that can occur between legislators and the judicial body from time to time at public events.

In any event, regretting that, I move to the preamble. Madam Minister, the preamble is good, but I can't give it an A-plus.

Mr. Chuck Cadman: Are we surprised?

Mr. John McKay: [Inaudible—Editor].

Mr. Derek Lee: Mr. McKay, do you have a comment you want to put on the record?

Mr. John McKay: I just did.

Mr. Derek Lee: Thank you.

There are a number of balances we're trying to acknowledge in this legislation—

Ms. Anne McLellan: Yes, and accommodate.

Mr. Derek Lee: —between victims, witnesses, accused, and the public. One of the balances we're addressing here comes up in this publication ban.

The department has done a rather good job of listing, in the clause involving the publication ban, the criteria that a judge would go through in determining whether or not there should be a ban. But as I understand it, when you have a substantive right articulated in our Constitution and then you have some other privilege hoisted, 10 times out of 10, the right is going to prevail over the privilege, because the substantive charter right is there in black and white. I'm thinking here of freedom of the press or freedom of expression.

I'm conscious about accepting that the preamble and the clause together create sufficient critical mass of the view of Parliament that when it comes to protecting some victims in some circumstances, the freedom of the press is going to have to wait. But I'm not sure we've articulated it enough. We've raised the issue in the preamble and we've sorted out the criteria in the clause, but we haven't weighed in. We haven't told it the way we see it.

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In the absence of that, I question whether a court truly is able to pick up on what Parliament wants. If it's looking for direction from Parliament in that particular balance—freedom of the press versus protection of victims—as I read this bill, I don't quite see it yet. I think we could improve on that.

Ms. Anne McLellan: Certainly I would be very interested in hearing from the committee as to whether they think we can improve on that.

You raise an important point and one that the court itself, in some of its charter jurisprudence, has talked about directly: the balancing of the right to a fair trial, for example, against the right to a fair and public hearing.

Unlike perhaps the courts in the United States, although it's always dangerous to generalize, our courts have done a better job of taking into account other values as opposed to the freedom of the press. They have been able to acknowledge the fact that in our country there are other values that must, in any given case, be given equal consideration. Then ultimately the court will strike the right balance in terms of that group of values they think should come into play in trying to decide, for example, whether one has an in camera hearing or not—though I know you're talking about publication bans.

What we're asking the courts to do here specifically—as we have in other Criminal Code provisions already, but we're trying to make it even plainer—is this. The court, at least in some cases, has to take into account the value of the victim of crime and what impact publication would have on the victim. That must go into the mix. That is a set of values.

We're sending the message that the court must be sure they give serious consideration to it, just as they do to the right of the accused to a fair trial and the right of the public, including the media, to openness and accessibility in relation to our justice system.

The court will be called upon, as it is now, to look at those things in an individual fact situation, with the guidance we've provided them, and determine which of those values...not necessarily which is to be paramount. Well, I guess that's what they will decide in a given case. On all the facts, how can we accommodate those different values? Ultimately, in a given case, they will decide, publication ban or no.

Mr. Derek Lee: You feel then they've been given adequate direction in the wording?

Ms. Anne McLellan: I think so, but having said that, I am open, if the committee thinks this could be drafted differently, if this is a real concern. If you think the clause dealing with this, starting at proposed subsection 486(4.1), could possibly be clarified in keeping with the spirit of the balance we've tried to strike here, I'm certainly open to considering that.

Mr. Derek Lee: What I have trouble with is this. If we haven't accorded a legislated right to a victim in this particular case, involving publication bans, and if this little berth we've accorded to the victim in the clause comes up and then is juxtaposed against a charter right, the victim is going to lose every time. How can a little niche of protection and consideration for a victim stand up against a substantive right, shown in the charter, that would allow a newspaper or a journalist to have access and make publication?

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Ms. Anne McLellan: Mr. Roy wants to say something.

Mr. Yvan Roy: You see, Mr. Lee, the way we have tried to do this is, in proposed subsection 486(4.7) in particular, to show as clearly as possible that the victim has a privacy right and that privacy right is a constitutional right.

Ms. Anne McLellan: In section 7.

Mr. Yvan Roy: Yes, in section 7 and section 8 of the charter.

So that's where the balancing we're talking about in the preamble is reflected in the legislation. There is a privacy right of the victim, and how you balance that right with that of the press and that of the accused would be done through the criteria enumerated in proposed subsection 486(4.7).

If there is a better way of doing this, as the minister has indicated, we would be more than happy to listen to the debates in this committee.

Mr. Derek Lee: I do understand, and I thank you for that. If so moved, I'll try to put my money where my mouth is as we move along in the bill.

Ms. Anne McLellan: Thank you, Derek.

The Chair: Thank you, Mr. Lee.

Ms. Anne McLellan: Mr. Lee, I'm sorry. I should not be so informal as to call you Derek.

The Chair: Thank you very much for appearing before us.

Ms. Anne McLellan: Thank you. It was my pleasure to be here, and I mean that quite sincerely. It is always a pleasure to be here.

Thank you again for the very hard work you do. I know this is one of the busiest committees in the House of Commons, if not the busiest, and I thank you all for the diligence and efficiency with which you operate and turn your attention to our legislation.

Thank you very much.

The Chair: Thank you.

I'll just mention to committee members that our impaired driving draft report will be on your desks on Friday, and that there's been a change on the estimates. The Solicitor General has been moved from Thursday of next week to Wednesday of next week.

Mr. John McKay: Mr. Chairman, while we're still on record, Mr. Lee's caution is well noted, and I apologize for any embarrassment I may have inadvertently caused Mr. Justice Cory.

Now I want to go off record.

Voices: Oh, oh!

The Chair: Thank you.

The meeting is adjourned.