Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 13 - Evidence - June 11, 2014
OTTAWA, Wednesday, June 11, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-489, An Act to amend the Criminal Code and the Corrections and Conditional Release Act (restrictions on offenders), met this day at 4:48 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good day and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
We are here today for our first meeting on Bill C-489, An Act to amend the Criminal Code and the Corrections and Conditional Release Act (restrictions on offenders).
This bill would direct a court to consider imposing an order prohibiting some offenders from being within a specified distance of their victims. It would also direct a releasing authority, like the Parole Board of Canada, to consider imposing certain conditions on the parole, temporary absence or statutory release of some offenders in order to protect their victims. Finally, the bill would make it a mandatory condition in probation orders and conditional sentences that offenders not communicate with their victims or go to certain specified places.
To introduce the bill to the committee, please welcome Mark Warawa, who is the Member of Parliament for Langley, British Columbia. Mr. Warawa, we will begin with your opening statement.
Mark Warawa, Sponsor of the bill, Member of Parliament for Langley, sponsor of the bill: Thank you, chair. I have 10 minutes; is that correct?
The Chair: Yes.
Mr. Warawa: Thank you for allowing me to speak here before the honourable senators at the Standing Senate Committee on Legal and Constitutional Affairs. I'm here to speak on Bill C-489, the safe at home bill, to outline the need that this bill seeks to meet and how it hopes to meet that need.
I presented this bill on behalf of my constituents in Langley and the thousands of cases of young victims in Canada who have lived in anguish and fear of their offenders. I am inspired by their bravery and courage to fight for the rights and protection of future victims. The objective of this bill is fully in line with the desire of Canadians to keep our streets and communities safe and to consider the rights of victims.
As I am sure you are aware, Bill C-489 received overwhelming support across all party lines in the House of Commons. I hope that all senators on this committee will also support this bill, and I ask for your help in getting it passed quickly into law.
Bill C-489 came about as a result of victims and their families in my riding of Langley bringing this to my attention. One of the brave victim's families offered to let their story be used to help us understand the seriousness of the problem and to better equip members of Parliament to adopt needed legislative changes.
The Langley sex offender served house arrest right across the street from his young victim. The victim could not feel safe in their own home or their neighbourhood, the very place where they should feel the safest. Every time that they saw their sex attacker, the entire family was re-victimized. The family lived in anguish, not knowing if the offender may be watching, looking for another opportunity to re-offend or to hurt someone else. The home and neighbourhood that they had once loved was now the place they dreaded to be because their sex attacker was there. The family could not take the stress and turmoil this caused them anymore and they were forced to move to a new neighbourhood.
The mother of the young girl, after two years of her daughter being sexually assaulted, came to me in tears and said, "Why should we have to move from our home when we're the victims?" That is a good question. Everyone should have the right to feel safe in their home and victims of sexual assaults are no exception.
Victims believe that they have been forgotten and that their safety and wellbeing is not being considered in the sentencing of the offenders. This is what Bill C-489 seeks to address.
Mr. Chair, the circumstances in my riding are not isolated events. Stats Canada's report on police-reported crime found that in 2012 there were nearly 4,000 cases of sexual assault against children. That report also found that children were five times more likely to be sexually assaulted than adults. This is true of all types of sexual assault, as well as other sexual offences. Children are among the most vulnerable members of our society, and it is our role to advocate for justice on their behalf. Sadly, in instances of sexual assault, the safety of a young child is often compromised by someone in their community.
In 2011, Stats Canada found that, of police-reported sexual offences against children and youth, 50 per cent were perpetrated by a friend or an acquaintance, and 38 per cent were by a family member. These stats highlight the sad fact that, together, 88 per cent of the sexual assaults against children and youth were committed by someone known to the victim prior to the offence. In these cases, not only is the victim suffering emotional and physical turmoil, but their trust has been betrayed. We cannot begin to imagine the turmoil that these young children and youth must be facing. It is no wonder that when the offender is permitted to serve a conditional sentence, house arrest, in the victim's neighbourhood, that the victim and their family will be re-victimized every time they see that offender. That is why one of the strengths of Bill C-489 is that it requires the courts to consider a geographic restriction on the offender.
The issue with our justice system is not that the courts do not have the authority to order non-contact restrictions on the offender. The current law already provides the courts with the authority and discretion to require conditions such as a child sex offender prohibition order, a probation order, a conditional sentence order, a child sex offender peace bond, or as part of a conditional release order pursuant to the Corrections and Conditional Release Act.
Even where such non-contact conditions are currently imposed, the need in our justice system is that the courts are not required to consider imposing such conditions. Furthermore, in many cases, the courts are not required to provide reasons for not imposing these conditions. As a result, non-contact conditions may simply fall through the cracks, and victims are left wondering why their protection and wellbeing wasn't taken into account.
The aim of Bill C-489 is clear: to protect the wellbeing and safety of the victims, their families and the witnesses of convicted offenders, and to enhance the level of confidence that victims have in the justice system. This bill will help to ensure that victims feel that their concerns for safety are being heard. It will achieve this objective by requiring that, whenever an offender is convicted of a child sexual offence, the sentencing courts must consider imposing specific restrictions on the offender to protect the victims, the victim's family and the witnesses. These measures will ensure greater safety and peace of mind so that the victim will not be re-victimized by seeing their offender.
More specifically, Bill C-489 would amend section 161 of the Criminal Code to require that the courts consider restricting the offender from being within two kilometres of the victim's dwelling house or any other distance specified by the court.
The bill also amends section 732.1 and 742.3 to require the courts to impose restrictions on probation and conditional sentences, to prohibit an offender from communicating with any victim or witness or from going to any places identified in the order. Although these conditions would be mandatory, the court would be given discretion to decide not to impose these if the victim or witness provided written consent or if the court finds exceptional circumstances. In either case, the judge would be required to provide a reason on the record to explain the findings to the family.
Bill C-489 also proposes to amend recognizance or peace bonds against individuals who are reasonably thought to commit a future child sexual offence. Specifically, it proposes to amend section 810.1, peace bonds, to require a court to consider imposing conditions prohibiting the offender from contacting an individual or going to any place named in the recognizance. Given that the judge has full discretion to impose any of the listed conditions in section 810.1, and that this is provided in writing and filed in the court, this section of Bill C-489 does not ask for written reasons in reference to exceptional circumstances like the other clauses in the bill.
Bill C-489 also proposes to amend section 133 of the Corrections and Conditional Release Act. While current legislation and policies authorize the Parole Board of Canada and Correctional Services of Canada to impose special conditions and instructions to manage an offender's risk in the community, there is no specific obligation to consider the input from victims in establishing the appropriate conditions.
Bill C-489 ensures additional emphasis on legislation and victims' needs and consideration of the conditions that would be appropriate to protect the victim from the offender. The releasing authority would be required to impose reasonable and necessary conditions on offenders, including non-communication or geographic restrictions, if a victim or other person has provided a statement regarding the harm done to them, the continuing impact of the offence, and safety concerns or comments on the possible release of the offender.
Finally, the bill would come into full force three months after it receives Royal Assent to provide adequate opportunity for courts and correctional institutions to prepare these reforms.
Mr. Chair, there is no question that Bill C-489 will increase public confidence in our justice system by strengthening the tools of our courts to consider the safety and security of victims and victims' families. I hope that this committee will act to enhance public safety by holding offenders accountable by considering the impact of sentencing on victims and by making victims feel safe in their homes and neighbourhoods.
I ask for the support of the honourable senators seated here today in reviewing this bill and getting it passed quickly into law so that young victims and their families will feel safe at home.
Thank you.
The Chair: Thank you, Mr. Warawa.
Senator Baker: Thank you, Mr. Warawa, for your presentation here today and your efforts in producing this bill. I have one general question, and I suppose it's a concern about the private member's bills.
We have dealt with several private member's bills in recent times that seek to impose mandatory provisions on the court when it comes to sentencing or release conditions. Of recent, we've noticed that some of the bills, with all good intentions, apply to certain sections of the code but don't apply to similar sections of the code and, in some cases, consequential amendments are omitted or neglected.
It's a private member's bill. You're not the Government of Canada bringing forward a bill on behalf of the Department of Justice who will check everything out. Let me give you an example on your bill, and I will get right to my question.
The Office of the Federal Ombudsman for Victims of Crime, Ms. Susan O'Sullivan, appeared before the House of Commons committee dealing with your bill. She made two observations, which were quite glaring omissions in the bill, and she suggested amendments, which the House of Commons committee did not consider.
There was a criminal defence lawyer who appeared after her, and they took up his suggestion on an amendment but they did not take up her suggestions.
Let me read the short paragraph. She says this:
Finally, I have a couple of suggestions for amendments that relate to more technical issues with the bill. The first pertains to the absence of long-term supervision orders in the list of circumstances in which non-communication orders must be imposed. Long-term supervision orders apply to cases of sexually-based offences, including those against children.
The second is this:
. . . an amendment to include long-term supervision orders within the bill going forward.
What we have are two sections of the law that could have been included to attain the same results as you've done with other sections.
I'm wondering did you consider this, these omissions applying the same standards to different release orders as you have applied to the ones you've outlined here in your bill? Were you aware of these omissions in the beginning, and is there a procedure whereby the Department of Justice will assist members of Parliament to make sure that the bill has that continuity throughout the code?
Mr. Warawa: I thank Senator Baker for the question.
It was very important that I said upfront that we are open to amendments, and I believe the House of Commons Standing Committee on Justice did good work on that.
Susan O'Sullivan said:
. . . I support the intent of the bill and commend Mr. Warawa for his efforts to further recognize victims of crime within the Canadian system.
She says:
. . . I support the passage of Bill C-489 and would encourage the members to consider the points that I have raised today in making some minor but important amendments to the bill.
The committee did consider them, and the amendments actually were supported by all parties. As you're aware, at any time any bills are presented to make legislative changes, we have to reach a balance. There is this tension, and you do not want to provide a burden on our system. You want to provide justice, and we've reached that balance with Bill C-489 as it has been amended. That's why it's very unique to have all-party support on Bill C-489.
There were suggestions for additional amendments, but what we have arrived at is a balance where we have released the tension and provided a balance for victims to be involved where you give the courts the discretion to make the ultimate decision, and then the administrative bodies also have that discretion. We need to protect the victims so their voices and concerns are being considered, and I think that balance has been reached.
Senator Baker: You're not saying that you're giving us an authority to amend the bill to include work releases?
Mr. Warawa: No.
Senator Baker: To include those on work release and those with escorted temporary absence and long-term supervision orders. Those people who have been convicted of the same crimes that you're covering here will not have the same conditions attached to them, and you feel okay with that?
Mr. Warawa: Yes, I do. I believe the balance has been reached, and you have referred to escorted temporary absences, ETAs; and unescorted —
Senator Baker: But the escorted aren't.
Mr. Warawa: Because there is a new norm within the Criminal Code that it's expected that you keep a separation between the victim and the offender, so it's a new norm unless there are exceptional circumstances. If a corrections officer is taking a convicted sex offender on an escorted release to a doctor's appointment, it's expected that they're not going to be taking them to the victim's house. That's why we felt that it reached that balance.
[Translation]
Senator Dagenais: When you tabled your bill in the House of Commons, you received the support of all members. To revisit what Ms. Françoise Boivin of the NDP said, the aim of the bill is to help victims, not for a political purpose but to really help them on the path to recovery.
Do I understand correctly that, from the outset, you received overwhelming support for your bill?
[English]
Mr. Warawa: Yes. Hopefully no one here has been a victim of a sexual assault or one of their children or grandchildren, but it's having heard first-hand the testimony at an in-camera meeting of Justice; it was heart-wrenching to hear the story and the impact on that family. The parents could see their daughter becoming more and more detached from them over a two-and-a-half-year period, and to find out what happened. There is no justice for that, but what they asked for was that the person would not be given house arrest. They were then not part of the system; they were there as observers. To have the courts allow conditional sentencing, house arrest, it destroyed their lives. They came in tears saying, "Why should we move when we're the victim? Why should we have to?"
That father would come home from work, come into the neighbourhood and see the offender cutting his lawn across the street and enjoying life — having some restrictions, of course — and then the daughter living in fear with the drapes closed and imagining, "Is he looking out the window?" The house across the street was elevated, so they had to keep their drapes closed because they were afraid, and imaginations. For the sanity of their family and the tension that put on that family, it was impossible for the victim to heal.
It destroyed the environment within that neighbourhood. They used to have barbecues out on the street and have fun together and the families were close. It created this terrible tension where neither the victim nor the offender could heal, and it really destroyed that neighbourhood. I heard from both the neighbours and the victim's family. I also heard from the offender's family.
What this bill does is quite simple in that we require the courts to consider providing an appropriate distance between the two parties, so that both can heal, and to protect our communities and our neighbourhoods.
We have to give the courts the discretion and this bill does do that. That was one of the major amendments to the bill, clarifying that the courts do have discretion, two kilometres. When I first heard this, it was five kilometres, and we quickly realized that was not appropriate, and two seemed more appropriate until you went into the smaller communities and realized that two may not be appropriate. The bill has been amended to allow the courts to have the discretion.
I believe it's constitutional, it will withstand a challenge, and it provides very simply a solution so that the victims can heal and so can the offender. The issues with the offender can be dealt with.
[Translation]
Senator Dagenais: If I understood your answer correctly, Mr. Warawa, victims who cross paths with their offender obviously feel re-victimized. It is like a second assault, because they see their attacker. At least, with this bill, despite its imperfections, there will be a two-kilometre radius in which they will not be "victimized." Did I understand correctly?
[English]
Mr. Warawa: Correct. In hearing from the victim, even seeing the offender unintentionally driving a car, not the person looking at her, but just seeing the offender filled her with fear and anxiety. To provide for healing, you have to have an appropriate space between the victim and offender, and that space would be deemed appropriately by the courts.
Senator Jaffer: Thank you very much for the work you've done on this bill. It's a very important issue. We both come from B.C., and you know I have roots in Langley, so I'm pleased you are doing this great work for us.
I would like a clarification. You talked about the "new norm." Do you mean the new norm being to make sure that the victim never has to face the offender? I didn't quite understand when you said this is a "new norm." I haven't heard that term before.
Mr. Warawa: What I was referring to, senator, is that the courts will consider the impact of having an offender in a close proximity to a victim. There may be some cases where the courts deem it's appropriate, but they will consider the impact on the victims. The new norm is that the court is always considering.
Senator Jaffer: So by the "new norm," you mean with this bill; correct?
Mr. Warawa: Correct.
Senator Jaffer: As much as I support what you're doing, I have some concerns that I would like to raise with you. Would this bill be retroactive?
Mr. Warawa: No.
Senator Jaffer: Second, I worked on this issue of sexual offence for a long time, and we know that one of the challenges is, sadly, it often happens within a family member. I understand 38 per cent of sexual offences are by a family member. After listening to you, am I correct in understanding that you're saying the judge in the end will decide because in that circumstance it may be that the two kilometres doesn't work because it's a different situation? Do you agree?
Mr. Warawa: Yes. The courts would decide what an appropriate distance is to keep separation between the victim and the offender.
Each offence is unique. There is the commonality that 88 per cent know each other and, as you pointed out; 38 per cent are family members. It's a very sad statistic. So the courts need the discretion to appropriately deal with the situation. They would hear all the factors and make sure that the victim is properly protected.
Senator Jaffer: The other concern, and it is something with all these bills, is that in the past, we left sentencing very much to the discretion of the judges, and here we're saying it's still at their discretion and they should look at all the circumstances. But are the two kilometres not adding punishment to what the judge would already be sentencing, and would this not be against the Charter?
Mr. Warawa: Thank you for that question. It possibly could, if it had not been amended to an appropriate distance as deemed by the courts.
In some cases, two kilometres would be adequate, and it provides some guidance to the court, but, again, the courts are not required to have a distance. They are required to consider having a distance. If the courts agree that there should be a distance, it doesn't have to be two kilometres. It could be five or it could be half a kilometre, whatever the courts deem. The courts have total discretion to consider the appropriate distance in each situation. It would, I believe, withstand a constitutional challenge if that happened, because all the discretion still remains with the courts.
I agree we need to give the courts that. This is not mandatory minimum sentencing. This is requiring the courts to consider the impact on the victims, and they had that authority all along, but the change with Bill C-489 is they would be required to consider the impact of sentencing on the victim. That did not occur before.
Senator Plett: I want to commend you, Mr. Warawa, for bringing forward this very important legislation. I think you've touched on my questions, but I will ask them anyway, because I would like them explained to me so that I know that I understand them properly.
I'll refer to some questions that Michael Spratt had at your committee. Michael Spratt has appeared here quite frequently, and I understand that he appeared at the House of Commons Standing Committee on Justice and Human Rights. I was disappointed, although certainly not surprised, that he had some reservations and opposed the bill, because I've never seen him support a bill. The NDP, the Liberals and the Conservatives, in fact, all supported this bill and he still, however, did not.
Now, he raised some concerns that I think are probably legitimate concerns. The first major one that he raised was that of the two-kilometre radius geographic restriction. He thought it strange that we would give judges the discretion to decide whether or not to impose geographic restriction, but not give them the discretion to determine what the radius should be. He raised the difference between rural and urban neighbourhoods.
I think you've explained that judges have a fair bit of latitude, but if a judge is to impose something other than two kilometres, one kilometre or five kilometres, what does the judge need to do? Does he or she need to give written reasons why the two kilometres isn't the right distance? Further to that, you talked about five kilometres being considered and two kilometres was what you decided on. How did you decide that that was the right distance?
Obviously, I come from rural Manitoba. I probably know everybody in a two-kilometre radius from my home in Landmark — not in Winnipeg where I live now, but certainly where I lived before. Yet, where I live now I don't know the people in my condo. There are certainly differences there, yet we seem to have distances that we focus on. Could you touch on that, please?
Mr. Warawa: Thank you. That's a very good question; I appreciate it.
The two kilometres, as I said before, started off at five kilometres. It was found that that may be too restrictive and it became two kilometres, to be reconsidered that it did not give the courts the discretion that is necessary.
Mr. Spratt said that he thought the intent and the goals of the bill are laudable. He would like to clarify some language in the bill and perhaps look at using judicial discretion.
This was before the bill was amended. After the bill was amended, the two kilometres stayed but added to it was "or a distance deemed appropriate by the court."
Another concern was the extra burden that would be put on the judicial system by requiring a written reason. If exceptional circumstances were that you did not have a distance, the courts then would initially be required to have a written response, written reason. That was amended and taken out, and it's now on the record.
The logic was that the families need to know the reason why, and that will be provided by the courts. No matter what happens now, the family will be advised and it will be on the record without creating any additional burden on the courts.
Again, it's this tension of providing the family the information they need, the tension of providing a safety area for the victim, so that the victim is not having to see the offender, and I think Bill C-489 as amended, as presented to you today, creates that; it presents that balance.
I appreciate those questions.
Senator Plett: You just alluded in response to Senator Jaffer about the 88 per cent of sexual assaults against children caused by someone known to the victim. Is that what we are really targeting and how is this bill important to the victims, who so often know the perpetrator?
Mr. Warawa: As you point out, the large percentage, 88 per cent of victims of a sexual assault, know the offender. So the offender then knows where they live, in most cases.
Senator Plett: If that's more than two kilometres away and they know where they live, how does this help?
Mr. Warawa: It was up to the courts to determine the appropriate distance. It may require, if the court deems it appropriate, to have that offender relocate. If the offender is given a conditional sentence, house arrest, the courts would be required to consider imposing a distance of two kilometres or what they deem is appropriate, so that the victim — who knows that offender and has that loss of trust — would need that distance to be in place. However, the courts again would determine what's appropriate.
Some would say that it's not the 88 per cent, but the remaining 12 per cent, where they didn't know the person, who would be even higher risk offenders. That would not be in a provincial system, a conditional sentencing house arrest. Because they're a higher risk, somebody grabbing somebody from the bushes, they create a much higher risk to our communities so they would likely be serving some federal time.
So these are people who have sexually abused a child. The child trusted them and they've taken advantage of that, so that child and the parents of that child, the guardians, need some space so they can heal.
Senator Joyal: I would like to come back to the point that you mentioned that the judges would have to state the reasons on the record. Do I understand that that could be part of the appeal on the sentence, that if a victim is not satisfied with the reasons that the judge might give, that this is appealable on the sentence, because we're dealing here with the sentence?
Mr. Warawa: I'm not a lawyer. My understanding is that everything could be appealed. Whether or not an appeal would be successful, I don't know, but I believe the purpose of our justice system is to provide justice and to protect victims, and to provide information to the victims, the rationale of the ruling of the decision of the court, I think doesn't create any additional burden but it provides justice that the victims need.
Senator Joyal: So your answer is yes, that could be part of the appeal or it could be a motive of appeal?
Mr. Warawa: It could, yes.
Senator Joyal: Because you are creating now a specific additional condition that, of course, is now even in the victim's capacity to pronounce. That's the way I read the bill, but I wanted to get from you your comments because you are the one who thought about the bill, its outcome and how it will be interpreted by the courts. The implication for the court system is, in my opinion, an important issue for us to take into account, as you will understand.
My other preoccupation is with the specific distance of two kilometres. I heard you answering previous questions, and I was wondering why you didn't extend the distance but give a capacity to the judge to appreciate it. Let me phrase what I have in mind. If you take the first section of the bill, (a.1), it states "being within two kilometres. . ."
Did you consider the wording of the following text: "being within a distance of up to five kilometres"? It would mean that the judge could say two, three, four or even five, or could say one depending on the specific housing conditions of the victim and the offender.
In my opinion, my first reaction, it would maintain the discretion of the judge to decide one, two, three, four or five. It would extend the perimeter of protection, of non-contact between the victim and the offender and, again, would certainly meet your objective of making sure that the victim is not in contact or exposed to the contact of his or her offender.
I wonder if a fixed two kilometres meets your objective more than a longer distance with a discretion to the judge. I don't know if I make myself clear enough for you to understand.
Mr. Warawa: Senator, I thank you for the question. As I said earlier, when we started off with five kilometres, we realized that that may not be an appropriate distance. It may be too restrictive, so we narrowed it to two and then realized it did not provide the discretion that the courts need.
If it was changed to a maximum of five, the courts may deem that it's unfortunate that it says maximum five because ten kilometres or six may be the appropriate.
I think we've reached a very good balance when we say two kilometres or what the courts deem as necessary. It could be 10; it could be 20; it could be 100; it could be half a kilometre. It really depends on each situation. Well, then, why two kilometres?
For a young person to be able to go out and ride their bike, go to the park or walk down to the corner store in an urban setting they would know they have a bit of a bubble zone around them that they can feel safe in. In many cases, two kilometres would be fine and it provides some guidance to the courts that, in many cases, it would.
However, if you go into rural communities, it may be too restrictive. Two kilometres may cover the whole town and it may not be possible for the offender and the victim to be able to live in the same town anymore.
I think the balance has been reached in the way the bill has been amended to be at two kilometres or at a distance deemed appropriate by the court.
Senator Joyal: With regard to the consent of the persons who are responsible for a minor, the parent or a guardian, the way I read the bill, I understand the consent has to be given at the moment the sentence is being considered by the court. Would it be possible at a later date for a parent or a guardian to review that consent and have a capacity to more or less adapt to the circumstances that might evolve, or is it a consent that is given once and for all at the moment of sentencing?
Mr. Warawa: Thank you for that question.
I would envision that additional information could be received from the parent or guardian, or the victim themselves. If the victim was a minor when the offence happened and then, during the sentence, had become an adult, there could be additional information provided to the administrative body if, at the point of sentencing, it's handled by the court. During the warrant period, it's handled now by the administrative bodies, the Parole Board of Canada or in a provincial probation board. They have a duty, and the parole officer could receive additional information.
I think there is flexibility built into this, but it's at the sentencing requirement to set the standard by the court.
The Chair: I have been advised that Mr. Warawa has to leave in 10 minutes for a vote in the house.
I have four senators who wish to ask questions. I will ask them to get their questions on the record in a timely way, and I would ask our witness to respond in a similar fashion.
[Translation]
Senator Boisvenu: Mr. Warawa, first of all, I would like to congratulate you on your bill.
For some dozen years I have been fighting to have the principle of the victims' right to have a buffer zone adopted. Victims should establish the distance that will separate them from the offender. Unfortunately, our justice system works in such a way that it is the offender who decides. That seems ridiculous to me, at least insofar as victims' rights are concerned.
In my opinion, your bill represents the minimum we can do; we should go even further. My concern is that the court will not set that distance. The offender serves three, four or five years in prison; he is still dangerous. Should this power in the Criminal Code not also be granted to the parole board, which could establish the distance because the offender is still dangerous?
We recently saw the case of Sandra Dion, where the decision was made to house her offender a few hundred metres from her residence, even though he said he would attack a policewoman again — Ms. Dion is a female police officer. In order to finally establish a reasonable distance, she had to speak to the press, to fight the system, to get the parole board to overturn the prison system's decision.
Therefore, we can see that victims still have to fight for the right to have a certain distance between the offender and the victim.
In the proposed amendment to the bill, which is a minimum for me, should the parole board not also have this right, so that they could automatically establish the distance between the attacker and the victim when an offender who is still a risk is released?
[English]
Mr. Warawa: The administrative bodies would be required to consider the direction of the court, the recommendation of the court, that there be this distance as an appropriate distance, so the administrative bodies would carry out that. It goes on from the court to the administrative bodies, being Correctional Service Canada, Parole Board of Canada or provincial probation bodies.
If, at the warrant expiry, there is concern that the offender presents additional risk and concern to the victim or the victim's family, they can apply for section 810.1 peace bond. It would be up to the court if they wanted to have those conditions added on in the form of a peace bond.
Senator McIntyre: Thank you for your presentation. For all probation and conditional sentences under the code, my understanding is that this bill would require a court to impose the two conditions, the non-communication order and geographic restrictions. However, the court has discretion in that case not to impose such a condition if it finds there are exceptional circumstances.
The bill also proposes to include similar non-contact conditions for section 810 peace bonds that are imposed on suspected child sexual offenders. However, section 810 does not refer to exceptional circumstances. I was wondering what the reasoning was for this. Is the idea behind the legislation to maintain consistency and to avoid any confusion in the courts, given the fact that judge has full discretion to impose any of the listed conditions under section 810?
Mr. Warawa: The courts will retain full discretion. The changes they are required to consider. They are not bound to have a non-communication order or geographic restrictions. They are required to consider. If they decide to consider, they then also have the discretion to decide on an appropriate distance.
Senator Batters: Thank you, Mr. Warawa. I appreciate your coming to our committee today and congratulations on all of your hard work coming to fruition at this point.
First, I wanted to tell you that I like the name of your bill, the Safe at Home Bill, which goes very far in explaining what the intent is. I also commend you on the smart amendment made by the house committee about having recorded reasons instead of written reasons because we don't want to do anything to increase court delays, which can be a problem throughout Canada. So that was a very smart amendment.
My question for you is that sentencing courts already have the authority to impose the restrictions on offenders that are included in the bill. Could you explain to us why you think it's important that these provisions are mandatory for the court to consider?
Mr. Warawa: The example that I gave in Langley is that this has happened. The courts are very busy. It's important that they be reminded to consider the impact of the sentencing on the victim. As was pointed out, it's the impact of the sentencing on the offender and getting the offender to become a productive citizen in our society, and the victims get forgotten in the process. They are there as an observer and they are forgotten.
This change would require the courts to consider the impact of the sentencing on the victims and I think it's a very important and much needed change, to the point where the witnesses we had all lauded the effort and agreed with the intent of Bill C-489. That rarely happens where you get all parties, including the witnesses from Justice, saying it was a good bill.
Senator McInnis: Thank you for coming. I think it's an excellent bill.
In preparation for the meeting I looked at some statistics. I will not bore you with all of them, but I was surprised to find out that there are almost 9,000 offenders under active supervision in the community throughout the country. Currently, the offenders are required to abide by a mix of mandatory and discretionary conditions imposed by the authority.
First, were you surprised at that large number, if you are aware of it? You can see where the courts could easily miss the condition if it were not mandatory and if it continued to be discretionary.
Mr. Warawa: Yes, there are many more victims than there are reported offences. Of the numbers that we've heard and the people that have been convicted of this offence, there are many more victims out there. They're afraid to report the crime. Maybe they have been intimidated and are fearful of their family being hurt or others being hurt, so they live in silence.
Bill C-489 will provide a voice for victims. They'll know that if they come forward and share their story, they'll be protected. It will make our society safer. Those who have this problem, rather than having them reoffend and create more victims, will have their problems dealt with. It will make our communities safer.
The Chair: Thank you, Mr. Warawa, for your appearance here today. We appreciate it. We'll let you get off to vote now.
Mr. Warawa: Thank you.
The Chair: Members, we've had to bump our scheduled witness from the Parole Board of Canada. We're hoping to get some feedback later tonight that he will be able to appear when we begin our meeting tomorrow morning. We'll next hear from the panel scheduled third on the agenda.
Returning from the Canadian Resource Centre for Victims of Crime we have Heidi Illingworth, Executive Director; and from the Canadian Association of Elizabeth Fry Societies, Kim Pate, Executive Director. From VASAM, Alain Fortier, who is the president of that organization. Catherine Latimer is expected to join us, and hopefully she will before we conclude the hearing.
I understand all of you have opening statements, so Ms. Illingworth, the floor is yours.
Heidi Illingworth, Executive Director, Canadian Resource Centre for Victims of Crime: Thank you for inviting us to appear before you today with respect to Bill C-489.
The Canadian Resource Centre for Victims of Crime was founded in 1992 to provide a voice in the criminal justice system for victims or persons harmed by serious crime. We provide advocacy, information resources and emotional support to our clients right across Canada, and our board of directors is made up of family members of homicide victims.
I just have a couple of comments to make, but our agency is in support of this bill. We support the objective, which is to impose conditions on offenders released into the community that will restrict their ability to communicate with victims against their wishes. We do have a few concerns about the bill as written.
The first is that the bill proposes amending section 161 so as to compel the court to consider issuing prohibition orders preventing an offender from being within two kilometres or any other distance of the victim's house or any other location that the court deems appropriate. We are concerned that if a court specifies a two-kilometre area that this directly reveals the victim's location or address in some cases, and especially in rural areas or small communities, but in all communities really. We recommend that the court assess each case and impose an appropriate distance specific to each case, when the victim desires it.
In the clauses that amend section 732.1 and section 742.3 around probation orders and conditional sentences respectively, the non-contact parts become mandatory unless the court decides that there are exceptional circumstances or the victim gives their consent in writing. We have a concern that, because so much crime occurs within families or between people known to each other, it's not always the case that the victim automatically wants to cut off contact completely with the person accused or the offender, so we feel it's really important that decision makers respect the requests of victims and that they should be consulted at the outset, rather than left trying to get a condition changed or removed after an order has been made.
Lastly, with respect to the CCRA, section 133 specifically, where the board is looking at potentially imposing non-communication or geographical restrictions, we feel it should not only apply where a victim impact statement has been submitted. Some registered victims don't submit impact statements but may raise their concerns about wishing to have no contact with maybe a regional communications officer or victims services officer, or even by sending a letter to the board through an agency like mine. We often do that for family members; we send concerns. The releasing authority, in our opinion, should be able to consider all information submitted on the victim's behalf, not just if a victim actually submits an impact statement. Thank you.
Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you for inviting us. Our organization works with victimized, marginalized, criminalized and institutionalized women and girls throughout the country. I am very pleased also to be joined by some of my members, because we are heading into our annual general meeting over the next five days, so my president Cathie Penny is here, as well as two representatives from our Atlantic region who have arrived early to be ready for our meetings.
I want to say at the outset that the objective of protecting people from being victimized — given that 91 per cent of indigenous women, 80 per cent of women overall who are in federal custody and some have suggested even higher in provincial custody, experienced violence prior to being criminalized and institutionalized — the reality of the objective of trying to prevent victimization is important to our organization.
Our concern with this bill is that these sorts of bills often create a false sense of security, first; and, second, our read of this bill is that everything, all of the objectives which the member presented, can already be met in current legislation through bail conditions, through the Corrections and Conditional Release Act, conditional sentences and conditional release provisions, as well as the long-term supervision orders which were alluded to during the questions of the member of Parliament.
The concern our organization raises is, one, it's not necessary to proceed this way. Really what underscores the production of these sorts of pieces of legislation is, in the first instance, that we don't take violence against women and children seriously and provide an overall approach that shores up the ability of families and individuals to not be put in a position of victimization or requiring protection.
Second, although this is presented as though it's restricted to sex offences, we can very quickly see how, as many other bills have, it could be expanded because the legislation or the proposed legislation does not actually restrict itself only to sex offences.
Third, in addition to not being necessary, a concern about putting the responsibility also on the victim or the victim's designate or parent to decide whether in fact such a provision should be put in place, and then how to amend it once it's made a court order, if in fact they change the position, as Heidi has already indicated might be the case.
Finally, particularly for those not just in small communities but those on reserves, and, given the overrepresentation of indigenous peoples and women in particular and children as both victims and those who have been criminalized, there is the issue of how to implement some of these provisions without the requisite resources in the communities to start with.
I look forward to your questions and I have perhaps more questions myself than answers at this stage.
The Chair: Thank you. We are now joined by Catherine Latimer who is the Executive Director of the John Howard Society of Canada.
Catherine Latimer, Executive Director, John Howard Society of Canada: As some of you will know, the John Howard Society of Canada is a community-based charity committed to supporting effective, just and humane responses to the causes and consequence of crime.
The society has about 60 front-line offices across the country with many programs to support victims of crimes through direct services, restorative justice and victim offender mediation, and all of our regional offices or local offices contribute to victim prevention by working with those at risk of offending or reoffending. We believe that our work helps to make communities safer.
Thank you for the kind invitation to speak about Bill C-489, which would allow for the inclusions of conditions to prohibit contact with victims for those who are serving sentences in the community, or in relation to specified persons in section 810 orders.
My comments on this bill will be fairly brief. Generally those serving sentences are being denied liberties in proportion to the seriousness of the offence and the degree of responsibility of the offender. While the John Howard Society of Canada has many concerns about the voice of victims in the criminal justice system, particularly in connection with the victim's Bill of Rights which has been introduced in the House of Commons, we don't have a problem with restricting contact between those who have been convicted of offences and potential victims, if that's the victim's wish.
We're not in any way opposed to the bill. I do share Kim Pate's concerns that there's very little in this bill that can't now be done, and the only hesitation we would have that, by making there be a judicial requirement to document why non-contact orders are imposed, it might slow down an already overburdened justice system when that really isn't necessary.
However, I appreciate that this bill does include sufficient judicial flexibility that it can take into account specific circumstances and not impose contact restrictions in some complicated cases, and there will be complicated cases. For example, I was talking to a perpetrator who was serving time at a federal institution not long ago and in a drunken state he had killed his best friend who happened to be his sister's fiancé. While his family is anxious to begin the restorative process and for him to come home, the sister who is still there is concerned, still harbours some, as you might imagine, animosity, and is not quite that far in the healing process.
You're going to end up with competition within the family when they're all victims about whether or not non-contact orders should be prescribed or whether there should be limitation in them coming to the place of residence.
I appreciate that there is sufficient judicial flexibility in this. I hope that there is an appreciation of judges to take into account the complexity of the victim-offender issues in some of these cases.
I do worry a bit about the section 810 provisions, which don't necessarily require that somebody has been convicted of an offence and can really be just a case made to police officers. I think that raises a lot of challenges, but generally we're not that concerned about the thrust of this particular bill. It is an area where I think it is legitimate that conditions can be imposed if victims are concerned about their liberties if somebody is serving part of their sentence or their sentence in the community.
The Chair: Mr. Fortier?
[Translation]
Alain Fortier, President, Victimes d'agressions sexuelles au masculin (VASAM): Thank you for the invitation to appear before you. My name is Alain Fortier, President of Victimes d'agressions sexuelles au masculin (VASAM). In the beginning, VASAM was a personal initiative. Over time, and with the growing demand, many victims decided to get together in order to create a non-profit organization.
Our organization's mission is to raise the awareness of people and of political authorities regarding the problem of sexual assaults against men during their childhood, and to show them the way and guide them to appropriate resources. The aim of our organization is to help victims survive the trauma and health problems that burden them long after the crime has been committed. It also intends to encourage men of all ages who were victims of sexual assault to ask for help, to break the silence and to retake control of their lives.
Here are the reasons why our organization fully supports Bill C-489, tabled in the House of Commons and now before the Senate.
First of all, VASAM supports the objectives of the bill, which are very clear. Bill C-489 is intended to ensure the well-being and safety of victims and their families, as well as witnesses, by protecting them from convicted offenders. It is also intended to increase victims' confidence in the justice system. This confidence is all too often tainted by some court decisions that very often impose few conditions on offenders.
Thanks to this bill, victims will receive a clear message. Their concerns regarding their safety will be heard and taken into account before the courts as well as before the Parole Board of Canada.
To achieve this objective, the bill will require the courts to consider imposing specific restrictions on offenders found guilty of sexual assault against a child, in order to protect the victim and their family, as well as witnesses. These measures will enhance the security and peace of mind of the victims by allowing them not to relive such difficult moments, particularly in crossing paths with their offender.
Allow me now to give you three important reasons for voting in favour of the passage of this bill in its current form. First of all, the courts and the Parole Board of Canada will have to take the issue of contact between offenders and their victims more seriously. They will have to take necessary and reasonable steps to protect victims. VASAM particularly applauds the passage of the first provision of the bill which will allow the judge to prohibit the offender from being within two kilometres, or any other distance specified in the order, of any dwelling house where the victim identified in the order ordinarily resides, or of any other place specified in the order.
On the one hand, the family environment, that is the home, place of work or school, will become a relevant and recognized factor that will be taken into consideration by judges. The imposition of a perimeter will allow the victim to feel safer.
On the other hand, we have to see the imposition of a safety perimeter as a preventive measure, which will allow for a reduction in the risk of recidivism and the tensions between the victim and the offender. As you know, as far as pedophiles are concerned, the risks of reoffending are high. Victims also have a right to life and to security.
Moreover, the Parole Board of Canada will have to take into account the reality of victims when offenders are released. In fact, if a victim indicates in their statement that they fear for their life, their security or that of family members, a parole board member will have to take note of it. The member will also have to justify the decision in the event that they do not take into account the victim's fears. We believe that this will promote and enhance the dialogue between the victims and the Parole Board of Canada, as well as encourage victims to write a statement and to ask that their safety be taken into consideration.
Finally, we believe that the bill will significantly reduce the possibility of "re-victimization" or post-traumatic stress afflicting the victims, because they will be unlikely to meet their attacker by chance. In fact, meeting their attacker again is often a significant source of anxiety for victims. Victims do not know how the offender will react once they are released. Will they try to intimidate them? To exact revenge? To attack them again? We believe that the better we protect victims, the more they will tend to denounce their aggressor, which will allow us as a society to make our streets safer.
On behalf of VASAM, I would like to thank Mr. Warawa for having tabled this bill. This legislation allows victims to be heard and to share their concerns with parliamentarians. This bill will serve not only victims from Mr. Warawa's riding, but also thousands of other people who deal with a crime every year.
[English]
The Chair: Thank you. We'll begin the questions with Senator Baker, deputy chair of the committee.
Senator Baker: A special thank you to all the witnesses who presented before us today.
I'd like to ask a question specifically to those whose job it is, particularly Ms. Pate and Ms. Latimer, to read the judgments of the court and to read the conditions of release practically on a daily basis; who know the conditions of release and who understand that geographic restrictions and no contact orders are an everyday occurrence.
I'd like to ask both of you specifically, do you see anything in this bill that is not presently being addressed, as you conclude from reading the judgments of the court and the release conditions on those affected by the legislation?
Ms. Pate: As I mentioned in my opening comments, Senator Baker, our read is that these conditions are already possible and most often are imposed. In fact, non-contact orders are most often imposed even between individuals, whether it's co-accused, or other family members, or anybody who might be seen as a risk. It is not an issue that has arisen to our knowledge, certainly with women.
There have been issues about whether or not crimes have been taken seriously, but that tends to be not at the stage of conditional release. Once someone has already been convicted and is serving a federal sentence, it tends to be much earlier in the process around reporting and around the issues you would be familiar with, namely, missing and murdered women and that sort of thing. It's more an issue of whether violence is taken seriously at the outset.
Ms. Latimer: I agree with Ms. Pate. I don't think there is anything in here that could not be achieved within the existing legal framework. I don't think we necessarily need this bill in order to provide for non-contact orders.
Senator Baker: Would you agree, then, when you read the sentencing judgments of the court on a daily basis and where you see, upon the serving of a particular sentence — whether it's in jail, or at home, or in the community — that the conditions of release outlined by the court are many and varied? In fact, they have been increasing over time. There is nothing that I can think of that is not addressed in your normal sentencing judgments of the courts.
Ms. Latimer: If anything, I would say there are probably too many conditions imposed on probation orders, bail orders and probably on conditional release orders. Many of the ones that we would be more concerned about are ones that set up a person to fail. If there is a legitimate purpose, for example if the judge is concerned that the victim is feeling uncomfortable or endangered by a certain person's release, it's very common for there to be a no-contact order included, particularly in parole orders or release orders.
Senator Baker: You say that some of these conditions are actually set up so that the person will fail the conditions of the release?
Ms. Latimer: I would say that is extremely common on bail conditions. I go back to Kim's point. You've got small communities where there are alcohol problems, and the person is asked to refrain from being anywhere where there's alcohol, or to report regularly when there's no transportation capacity to get to the spot where they have to report to. That will exclude a large chunk of the community.
Senator Baker: Or be associating with somebody with a criminal record, when the entire family have criminal records.
Ms. Latimer: Yes.
Senator Baker: The final observation that we made before was that certain long-term supervision orders are not covered under this and neither are the work releases. In other words, you have certain releases that are covered by the bill and, yet, if you're under a long-term supervision order in the community, it's not covered under the bill. Do you find that's a bit off-putting, that we don't have a mechanism on Parliament Hill, with private member's bills, to make sure that the bill is comprehensive and that the Department of Justice at least passes a judgment? Not just on its constitutionality, which they don't. They refuse to appear before this committee to declare on private bills, as you know. This is sort of piecemeal. Would you agree with that observation?
Ms. Latimer: I think it's kind of unusual that you would have a comprehensive victims' bill of rights that's being introduced and then have a series of smaller issues that are associated with victims' issues and not deal with it in a comprehensive package. I think that will lead to things being missed, inconsistencies and not a very coherent stricture. It would be better, if you are going to deal with victims' issues, to deal with them in a comprehensive way, rather than having a series of unrelated bills.
[Translation]
Senator Dagenais: I would first of all like to thank our witnesses for being here with us today. I would also like to take this opportunity to say hello to Ms. Illingworth with whom I sat on the board for several years.
As was mentioned in the bill, a sexual assault is not shoplifting at the corner store, particularly since the risks of re-offending are often significant. It is therefore imperative to protect victims. This bill gives discretionary powers to judges. One of the goals of the bill is to further respect and compassion for victims, among other things by taking their point of view into account.
Do you believe this bill will increase the public's trust in the justice system? My question is for all four of you.
[English]
Ms. Illingworth: Yes, I think it will, to a certain extent. Unfortunately, most members of the public aren't very concerned with criminal justice issues unless something happens to one of their loved ones. Then, they have more of a vested interest and start to look at the system and see that there are many injustices when it comes to victims' rights when you compare them with the protections that accused persons have. But, yes, I think that most members of the public would be supportive of something that asked judges to think about the safety of all victims.
[Translation]
Senator Dagenais: Are there any other comments?
[English]
Ms. Pate: I wouldn't disagree. You present something as, "Are we going to protect the needs of victims versus not?" It sounds a bit simplistic, but that's really how it is sometimes presented. I would suggest that that is a bit how this is presented.
It's already possible to take those issues into account. The fact that they haven't been taken into account is a much bigger issue than just the law as it currently exists, as I was trying to mention and as others have mentioned, as well. When we haven't taken seriously providing opportunities for people to not be in a position where they're victimized or marginalized and then come down with the full weight of the law once they are criminalized, when they have crossed over that line, the reality is that that sounds like a way to resolve something when it really isn't. It's really not resolving things at the root.
None of us are saying, "Don't protect victims; don't ensure that victims are protected," but we are saying that to pretend that this will actually achieve that creates the false sense of security that that, in fact, is what we need. If that was all we needed, then we would see a much blunter system and a much more accessible one. Back to one of the questions raised earlier, we're seeing increasing numbers of restrictions placed on individuals, for example, things like relationship conditions. For women, we've seen an increase in conditions that they not enter into relationships, or that they not go into certain areas, or not be in the vicinity of individuals who have criminal records when, as has been mentioned, many in their families have them.
Back in 1990, in Alberta alone, when they reviewed all of the indigenous men in the province, 90 per cent of those who had reached the age of 30 had criminal records. That puts you at a huge disadvantage because that's your family.
When we asked, just recently, the parole board and Correctional Service Canada how many women had conditions about relationships, even though it had nothing to do with their crime, there were so many they couldn't give us an accounting. They said it would take seven years and be astronomically costly for us to get that information. That just bogs down a system in a way that isn't helpful and creates a false sense that something is being done when, in fact, we see more and more people under supervision without the requisite supports to ensure that they are safe and that, by extension, we're all in a much safer position.
The Chair: Ms. Pate took a bit of time there. If the other witnesses are going to respond, do it in a timely way.
Ms. Latimer: I would say that this will not necessarily increase people's confidence in the justice system. I would say there are profound problems with the justice system in terms of delays in the justice system; inability to get access to legal aid; class-based discriminatory provisions, which are having a disproportionately harsh effect on the poor; very serious problems of crowding; and problems with the actual rehabilitation and correction of people in the corrections system. So I would say that there are some really profound problems in the justice and corrections system that this doesn't really touch.
The Chair: Mr. Fortier, did you wish to respond?
[Translation]
Mr. Fortier: For my part, I do not think the bill will change the justice system to the extent that victims' confidence will be hugely increased. However, I believe it is another step in the right direction in order to reassure victims. Having been the victim of a sexual assault myself, I know that one of a victim's nightmares is the fear of meeting their abuser. We wonder what our reaction would be should such a case present itself. It is an enormous stress. Such a bill would set out certain conditions, which would probably result in a higher sense of security for victims, because they will feel better respected within the process. There has been very little consultation of victims in the legal world up until now, and I think this bill will improve the situation somewhat. Is it a miracle bill? No. However, it is a good bill, and for that reason we support it.
[English]
Senator Jaffer: Thank you for all your presentations. In the time I have available, I will ask Ms. Pate and Ms. Latimer to first comment. We all know what no contact orders mean, but you have direct contact with people who have to follow those orders. I would first like you both to define what you see as no contact orders.
Ms. Pate: The no contact orders are certainly useful where, in fact, someone has been held accountable. For most of the women that we work with, they have been victimized, and very few people, if any, have been held accountable for their victimization, particularly sexual and physical victimization. If it's a family member, there is huge pressure, particularly if they're young people, to not proceed through the entire process. The more restrictions, as opposed to supports, the more likely it is that the family will put pressure on not to report. I would say in these sorts of cases, if a family member is part of the financial support, going back to Ms. Latimer's very succinct articulation of the issue in the previous question, it puts a huge disadvantage to those who are most marginalized, particularly poor people, indigenous people and those relying on the state for support.
Ms. Latimer: I would agree with that. I think that sometimes people are unaware of the extent to which there are violent offences within the family, and that will really fracture a family, because many of the members of the family will want to remain in contact, whereas some might not. You will get a divided household, some supporting the person and maybe some not. That creates real problems.
Senator Jaffer: The thing that really concerns me is that this is a really good bill, it has good intentions, but it will not change anything because it is a good bill without proper resources and proper education. I think this bill raises expectations that will not really be followed on the ground. Am I wrong on that, Ms. Pate?
Ms. Pate: I think that's accurate. That's what I'm saying about the false sense of security that something will be happening that won't necessarily be happening.
Ms. Illingworth: I think the statement that was just made is contradictory. We're saying that the courts order no contact orders all the time, but then at the same time we're saying this is not going to change anything. If it is a mandatory to ensure, when this bill is passed, that a court consider it, is it something that's redundant or is it something that's needed? Is it a good thing to make sure that a judge or the parole board double-checks on these issues? Yes, I think it's important.
[Translation]
Mr. Fortier: On the other hand, will a bill like this create a false sense of security? It is hard to say. We know that 90 per cent of people do not report sexual crimes because they are afraid of reprisals; such a bill would at least perhaps contribute to reassuring a few victims. Will this still be the case in the long term? We will have to see over time. The passage of this bill will create a sense of security among victims and it is aimed at encouraging more individuals to denounce their abusers.
In some families, sometimes the brother-in-law or the uncle is the aggressor. At that point, it will be up to the family to decide whether or not to lift the ban. However, what is interesting is that as soon as this bill is passed, the judge will be able to consider the victim and the family's perspective. I think that this represents a major advance in favour of victims.
[English]
Ms. Latimer: I would favour additional resources being put into victim services rather than just some conditions being placed upon them. I think that there is a healing process that needs to take place and if they can be supported, that makes sense.
[Translation]
Senator Boisvenu: Mr. Fortier, first, I want to congratulate you for taking action. You have managed in some ways to take an unhappy incident and turn it into a process to help other victims, giving them a voice. That is what we have been missing from our criminal justice system, that is, voices such as yours. Congratulations!
Still today, and correct me if I am wrong, Mr. Fortier, the complaint we most often hear from victims is that they are not informed of the place of residence of the offenders who abused them, and are not told of things such as how far away they live. This is still something that is applied in a very liberal fashion. In your brief, you stated that this bill would help victims feel safer. Do you think we should be pushing for more?
Mr. Fortier: It is true that the approach is liberal in terms of the judgment, regarding the problems facing victims. Ideally, a 5 or 10-kilometre radius would be imposed. There should be no maximum distance. Two kilometres in a rural area is quite far, while it is next to nothing in downtown Montreal. It will be up to the judge to decide. For now, two kilometres is the minimum for consideration. We do want to push further but we will see how the bill will evolve in the long term and whether that distance needs to be adjusted. For now, the two-kilometre minimum is right. We may, however, want to increase it.
Senator Boisvenu: Do you believe the amendments to section 810 will allow judges to broaden the elements in this bill at the time of the offender's release? Are you satisfied with this?
Mr. Fortier: Yes, we are satisfied with this at this time. What is important is knowing that there is a place for the victim within the criminal justice system. A victim's worst nightmare is to encounter his or her abuser. That creates post-traumatic stress. This bill represents a solid foundation for the protection of victims.
[English]
Senator Joyal: Welcome. I'm tempted to ask you on the basis that a large number of people in prisons are Aboriginal people. Some of them live on the reserve whereby it's very closely knit, or even urban Aboriginal people tend to group and live together. What impact will the bill have on those communities?
I feel that we always think in relation to the bill about the 12 per cent of people who are unknown to their victim, but the majority are more or less family. Statistics Canada and the sponsor of the bill have mentioned it, more than 38 per cent are family related. We are almost talking of family crime in terms of sexual assault.
I try to understand in practical terms how it will be implemented in small communities where everybody knows everybody and the more you stigmatize the offender, the more in fact you are sometimes making the evolution of people difficult. We're talking here of minors, and those people are not free to move around. They are more or less caught there and they will live there for most of their lives. How does a bill like this materialize in practical terms in those communities?
Ms. Pate: I agree. I think you've essentially provided your own commentary to the question you've asked, which is, it's very difficult.
In our experience, it often means that the individual is not able to return to their community right now if those conditions are imposed, because that's where they have their support but it's also where the individuals who may have been involved in the crime as victims or as co-accused may be. Depending on who gets out first, they may not be able to go back, or if there is already provision not to associate. I think those concerns persist. They already exist; they persist.
Just to address the issue that was raised before, right now the parole board can impose and so can the provisions of a section 810 order include perimeter further than two kilometres. It can be specific to an individual; it can be specific to a geographic area.
The challenges are, as Ms. Latimer has already stated, that without the resources on the ground, people who are already at risk become even more marginalized and put at greater risk, both those who have been victimized, if they are in the community and don't have supports, and those who have completed their sentence or are being conditionally released.
Ms. Latimer: I think you point to something that is a real problem. I was just talking to an Inuit liaison person who works with Correctional Service Canada.
Oftentimes, people will not be welcomed back into their communities because of a variety of orders, including non-contact orders. Therefore, in order to give support and some security to a victim in the home community, this person will be going to another community without the supports. If they're unsupported in the community, the likelihood they will reoffend actually goes up. If you are looking at the general impact on victims, you would probably be protecting the previous victim but putting other people at risk of victimization. It's hard to know what the better outcome is.
Victims who are concerned about a particular perpetrator should be getting some protection, but how that plays out in small communities could raise another set of concerns.
[Translation]
Senator Joyal: Do you have any comments on this, Mr. Fortier? In places where people know each other quite well, especially when they are members of the same family, as we heard earlier today, the majority of the perpetrators of sexual abuse against children are family members or someone the children already know. In the case of small communities, the problems of non-contact and of giving consent and then withdrawing it become much bigger than in communities where people do not know everyone or their neighbours, as you have said. However, this is not what this is about. Eighty-eight per cent of abusers are known to their victims and still have access to them.
Mr. Fortier: You are right. In this case, 88 per cent of the perpetrators are close to the victims or known to them. They are not necessarily family members. It can be someone they know through sports teams, for example.
I do not know the situation in Aboriginal communities. However, it will clearly be more difficult to enforce this legislation in small communities. At the same time, it will be up to the victim to see how it is done. We cannot forget that it is the abuser and not the victim who committed the crime.
Telling the offender to change communities might be a good sign of empathy towards the victim and the trauma they have suffered. If the offender decides on his own to leave the community or to go outside of it, this may perhaps raise new concerns for him. However, that would be proof of some willingness on his part to rehabilitate himself and to show respect for the victim and their choices. Let us not forget that this person never wanted to be the victim of this crime. That is why we really have to consider the victim.
In small communities, it would be up to the judge to decide. In my opinion, the measures should still be applicable.
[English]
Senator McIntyre: The bill contains only six clauses. One clause provides that, in the case of exceptional circumstances, the judge does not have to file written reasons; however, he has to state his reasons for the decision on the record. Would you prefer having a judge write written decisions, or are you satisfied with the decision in the record?
Perhaps I should add that maybe the requirement to provide reasons in writing would have a potentially significant impact on court resources. Maybe that's the reason. Requiring reasons to be stated in the record might still achieve the desired results.
Ms. Latimer: As long as it's a court of record — and most of these would be courts of record — you could get access to the decision if it was simply read into the record and not actually written out by the judge, which would be more time-consuming. I think the purpose is served if they read it in.
Senator McIntyre: In the record?
Ms. Latimer: Yes.
Ms. Pate: You've hit on one of the issues we've been trying to articulate; namely, the amount of time being spent on bills like this that could already put those restrictions in place instead of having those resources going to the community is part of the frustration for some us.
There is no issue from our organization or, I would suggest, from any of the organizations here that resources be put in place to assist people and prevent victimization. But the more we focus on at this end with repetitive pieces of legislation and additional conditions to achieve the same goal really undermines ability to do the other work.
Senator McIntyre: Exactly. It's just as easy to state the reasons for the decision in the record as opposed to writing a long written decision and waiting a couple of months before filing with the parties.
Senator McInnis: We heard from the promoter of the bill about some serious consequences of victims having to be in the presence of the offender — in Langley, B.C., I think he mentioned. I think he also mentioned revictimization.
My the question is: Who failed the victims in Langley, which the conditions enshrined in this bill would have prevented?
Ms. Latimer, when you said in response to a question from Senator Baker that the conditions could be done now; the difference is that they're not mandatory, and they're going to be mandatory. It all could be done if it were left at the discretion of the authority. What this bill is doing is saying you must look at this condition. There is a distinct difference here.
The bill handles this and would have prevented some of these other situations. I'm not going to get into the Canadian Victims Bill of Rights, but I suggest you read it, because it's not just amendments to the Criminal Code and other acts. It is actually, for the first time in this country, going to lay out a bill of rights for the victims — some provinces have them — and it will be a very worthy piece of legislation.
The Chair: Do you wish to comment on that?
Senator McInnis: I would just make the point that these things can now be done in the Criminal Code — no question about that — but they're not consistently being done. The authorities make mistakes or overlook things. I've seen it.
The Chair: Does anyone wish to comment? Okay, we will move on.
Senator Batters: With respect to what I believe was the last answer that Mr. Fortier gave, I thank you for bringing out the point that we need to think about the victims in circumstances like this. These are people who did not choose the circumstances in which they find themselves.
In one area of Senator Joyal's questioning, when it may have sounded to people who are listening to this committee hearing today that we're talking about a bill that applies to some massive proportion of all offenders, we're talking in this bill about sex offenders who have abused children. I wanted to focus the committee on that at this point.
Ms. Latimer, I wanted to ask you a question on this. First of all, I take it as a bit of a win when you indicated that you're not concerned about this bill and you acknowledged that are definitely circumstances in which these types of conditions are very warranted, so I appreciate you acknowledging that.
Earlier, you were talking about us having the Canadian Victims Bill of Rights, which the government introduced recently, and then we have a series of unrelated bills that also pertain to a number of different victims' matters. The reason for that is because the Canadian Victims Bill of Rights is a government bill, brought forward by the Justice Minister, but these other types of bills — one of which we're talking about today — are private members' bills, which individual MPs are bringing forward in response to matters maybe they have dealt with personally, or they're cases where constituents have dealt with some unfortunate circumstances and they see ways that, in their view, they can try to improve the criminal law. Is that not what democracy is all about, namely somebody going to the federal Parliament to try to make our criminal justice laws better, or whatever type of law they might take it upon themselves to bring forward, a bill to try to improve? I wanted to bring that to your attention. That's the reason for what seemingly may be unrelated bills that deal with the same subject matter.
Earlier, you said that it was your preference that more money could be allocated to victims' services. Of course, a private member's bill would not be able to do that because they are unable to commit money in a private member's bill without a Royal Recommendation. I wanted to get that on the record and see if you have any comment.
Ms. Latimer: I agree that there are limitations to private member's bills. There is a concern that private member's bills should be consistent with government legislation when it's being brought forward. Given that the field of victims and the proposed Victims Bill of Rights, which is now in the House of Commons, will have fairly far-reaching implications, as Senator McInnis indicated, it may be wise to make sure there are not inconsistencies in private member's bills that have been introduced before a broader piece is put on the table. That would be my concern.
Given that victims are a priority for the government, I think some allocation of resources would assist in this particular case. I think it was in response to a specific question where I had responded that it would be slightly more advantageous to include some resources in a broader initiative for victims than simply to increase conditions of non-contact.
We don't have a problem with non-contact conditions on parole orders or other things, particularly if it will allay the concerns of the victim. If there is any reason to believe that the offender continues to harbour some ill will toward that particular person, they should be imposed.
The Chair: We have some additional time. The witnesses are committed to staying with us until 7 p.m., I believe.
Senator Joyal: Before you were invited to testify about giving consent and withdrawing consent, I had asked a question about it. Do you think the bill recognizes that this is a situation that happens? That is, a victim might be young. I can understand that parents might not want to have a victim get in touch with somebody or with the family, but later, when the person gets older, that might be a way to more or less turn the page.
How would we fare with that kind of evolving situation which, in my opinion, happens to be a reality?
Ms. Pate: It was a question I was raising. It's not clear to me how you would address that besides through the usual appellate process. Otherwise, you have to wait until the expiration of the sentence, provided it is not a life sentence. That was a question I had as well: If it's a judicial determination, aside from an appeal process, unless they can convince the Crown to appeal, how would they review it? I'm not sure.
Senator Joyal: In your past experience, when the victim is invited by the court to make a presentation and to express views, that might be taken into consideration at the moment of the sentence, but there is a point whereby what has happened takes a different perspective. How reflexive should the system be in that situation to be sure it meets its objective of reintegrating people and having a normal life and a normal family life at one point in time?
Ms. Pate: We would agree that it needs to be reflexive, with the recognition that it not be a mechanism that can then be used to be more oppressive for the individual as well, as sometimes exists now with preventative orders like peace bonds.
Ms. Latimer: You raised an interesting point in that victims are on a healing journey and how they feel immediately after an offence is not necessarily how they will feel sometime later. For them to be locked into a judicial order that they wanted earlier on is probably constraining. There needs to be capacity for them to reflect on whether they still want a no-contact order in place if they want to do some restorative practice or something that brings them into contact with the perpetrator.
Ms. Illingworth: It depends on the sentence that's imposed at the time. If we're talking about sexual offences against children, it's likely that a child might make a decision to get back in touch with a parent or with someone who abused them at an older age, but when they're young they need protections from people who have perpetrated against them.
When it comes to the parole board imposing decisions later on, certainly they would have a right at that time to say that they didn't need a no-contact order later on, if they were an adult at that time and they could participate in the parole process.
Senator Joyal: Thank you.
The Chair: Does anyone else have additional questions? Seeing none, thank you very much witnesses. I appreciate your appearance here this evening and your contribution.
Members, before we adjourn, we will be meeting again tomorrow morning. We will hear from the chair of the Parole Board of Canada to start the morning off.
We will be dealing with Bill C-37, currently before the Senate, the riding name change act, but we are uncertain as to when. It could be Friday or Monday. Part of that is dependent on the ability of the minister, the Government House Leader, to appear before the committee.
Senator Joyal: I was told by Senator Baker that there is a bill that involves assault on a bus driver. Could you inform us if that bill will be in front of us at some point in time?
The Chair: It's on the schedule for tomorrow. Tomorrow we will hear from the parole board chair and, hopefully, we will move to clause-by-clause on this legislation, Bill C-489. Then we will have a brief opportunity, an hour or so, to deal with Bill C-221.
Senator Jaffer: We also have a 12:30 meeting tomorrow. There is a conflict. Are we finishing at 12:30?
The Chair: That's the scheduled time. We should be able to handle that time frame. Is there anything else from the committee? If not, the meeting is adjourned.
(The committee adjourned.)