Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 28, Evidence - March 25, 2015
OTTAWA, Wednesday, March 25, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts, met this day at 4:17 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 meeting today to begin our study of Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts.
Bill C-32 creates the Canadian victims bill of rights. The bill also proposes to provide victims with increased opportunities to participate in criminal trials and the sentencing process and provides increased access to information for victims about the offender who harmed them, among a number of other provisions.
As a reminder to those watching, these committee hearings are open to the public and are also available via webcast on the parl.gc.ca website. You can find more information on the schedule of witnesses on that same website under "Senate Committees."
To begin our study on the bill, please welcome the Honourable Peter MacKay, Minister of Justice and Attorney General of Canada; and the Honourable Steven Blaney, Minister of Public Safety and Emergency Preparedness.
Minister MacKay is accompanied by Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section; and Pamela Arnott, Director and Senior Counsel, Policy Centre for Victim Issues. Minister Blaney is accompanied by Kathy Thompson, Assistant Deputy Minister, Community Safety & Countering Crime Branch.
Also here today to answer questions during the second portion of today's meeting, we have Don Head, Commissioner of Correctional Service Canada; and Richard Clair, Executive Director General, Parole Board of Canada, along with additional officials from Public Safety Canada: Angela Connidis, Director General, Corrections; and Hasti Kousha, Counsel, Legal Services.
Minister MacKay, we will begin with your opening statement, followed by Minister Blaney.
Hon. Peter MacKay, P.C., M.P., Minister of Justice and Attorney General of Canada: Honourable senators, I'm proud to be here, always proud to be with my friend and colleague, Minister of Public Safety and partner against crime, Minister Blaney, and our officials, to present on what I believe is a monumental bill when it comes to our criminal justice system. We're here to speak about Bill C-32, the victims bill of rights act.
This bill represents a new and modern approach to how victims are regarded, included and embraced in our criminal justice process. This bill would create a stand-alone act, and the Canadian victims bill of rights is intended to entrench the rights of victims into federal law for the first time.
The effect has been among the most inclusive, non-partisan exercises ever undertaken by the Department of Justice, and would I suggest this exercise reflects very well on the Parliament of Canada. Before entering my career in public life, I worked as a defence lawyer and then a Crown prosecutor, and these roles gave me an opportunity to fully appreciate how our criminal justice system functions, its practicalities and complexities. Although I thought then and believe now that the Canadian justice system is among the best in the world, my experiences on both sides of the courtroom left little doubt in my mind that it can be difficult, intimidating and sometimes unforgiving for victims.
This is why Bill C-32 is so important to me personally. Some of the most dedicated, committed and professional people I have ever met work within our justice system, yet the time is long overdue to create a Canadian victims bill of rights to give victims and their families a more effective voice in the criminal justice system, and I include in that the corrections system. I am proud to be part of the process that has led to us this point.
[Translation]
The Canadian victims bill of rights marks a shift in our thinking about the role that victims of crime play in our criminal justice process. All victims, whether or not they appear as witnesses in criminal proceedings, share the same essential needs. That is the message I have heard over and over: victims want to be treated with courtesy, dignity and respect by criminal justice system personnel.
[English]
The first step that we took in developing this bill was to ensure that victims' voices were heard. That is why we held extensive consultations across the country, every province and territory. I did so shortly after being named as Minister of Justice, and I still marvel at the openness, courage and honesty of the many victims who appeared before our committees and our panels, and their willingness to share what were obviously very painful experiences. This was displayed by victims of crime who came forward and gave invaluable input into this bill, and we hope that it is reflected in the sections that appear in Bill C-32.
I also heard from a number of victim services providers, those who work daily and directly with victims of crime and their families, who know how difficult it is to navigate the system. And we also heard through online consultations, perhaps again one of the most extensive that we've done at the Department of Justice in tapping into a network online.
All of this allowed us, I believe, to ensure that a formal recognition of victims' rights would first and foremost not impact the efficiency of the criminal justice system — this was a concern expressed in particular by Crown prosecutors and police — but throughout the correctional system as well, or that it would not impact on offenders' constitutionally protected rights, an important consideration, to say the least.
We consulted with a number of criminal justice professionals. We consulted extensively with our provincial and territorial counterparts. We were and are very aware that a law enshrining victims' rights cannot be effective without the dedication and effort of those who work in the justice system and correctional system each and every day. So in undertaking this at the front end of the process, we wanted to ensure that their views first and foremost were considered.
I note that this bill should not in any way ever be portrayed as a negative reflection on those daily front-line participants. They work hard each and every day and do their utmost to represent, include and respect victims in their deliberations and decisions.
The result of the extensive consultation for the victims bill of rights we believe produces a bill that sends a clear message to victims of crime: You're an important part of the process. We care about your experience in this process, and we care from the time that the crime is reported, investigated and prosecuted, through the sentencing, the conditional or statutory release or warrant expiry process to the very end of this process. We recognize the harm that you have suffered, and we do not want your participation in the criminal justice system to harm you further or, as we too often have heard, to re-victimize you.
In reality, many of the cases that we examined and much of the testimony that we heard called for very simple concepts of respect and inclusion, things as simple as having their voice heard in the process. That's why this Canadian victims bill of rights, the stand-alone act in Bill C-32 before you, enshrines victims' rights. And it includes two important provisions that I would like to highlight for you.
The first is found in the second paragraph of the preamble of the bill.
It states:
Whereas victims of crime and their families deserve to be treated with courtesy, compassion and respect, including respect for their dignity . . .
These are simple but powerful words that set the tone for this bill.
I note the preamble stated originally that the need to treat victims and their families was with respect, and at the urging of Sharon Rosenfeldt, a lifelong advocate for victims, who will appear before you tomorrow, a government amendment was adopted by the House of Commons Standing Committee on Justice and Human Rights, which specified that victims of crime and their families deserve to be treated not only with respect but also with respect for their dignity.
This amendment was also inspired by the original 1988 Canadian Statement of Basic Principles of Justice for Victims of Crime and the 1985 United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. These twin concepts of respect and dignity are what victims have sought for so long in their interactions with the criminal justice system. I am proud that we have decided to include this in the bill.
The second provision, which underscores the bill's new approach to victims, is the primacy provision. Mr. Chair, colleagues, section 22 of the Canadian victims bill of rights provides that if there is a conflict between the Canadian victims bill of rights and another federal act or statute, the provision of the Canadian victims bill of rights will prevail. This ensures that victims' rights will be protected to the greatest extent possible. There have been certain exceptions to this primacy provision, which I know are of interest to all.
Acts that have been deemed quasi-constitutional by the courts, including the Canadian Bill of Rights, the Canadian Human Rights Act, the Official Languages Act, the Access to Information Act and the Privacy Act, will take precedence in the event of a conflict with the Canadian victims bill of rights. This is because the quasi-constitutional acts express and protect essential human rights fundamental to a free and democratic society. A conflict between one of these quasi-constitutional acts and the Canadian victims bill of rights would be resolved through a balancing of rights by the courts.
[Translation]
The primacy provision puts the Canadian victims bill of rights on equal footing with other quasi-constitutional statutes. It also sends a clear message that victims' rights cannot be overlooked in the criminal justice system.
[English]
As everyone is aware, the rights included in the Canadian victims bill of rights fall into four basic areas, including the rights to information, protection, participation and restitution. In addition, this bill includes amendments to other acts, such as the Criminal Code and the Corrections and Conditional Release Act, which my colleague will speak to in more detail, all of which provide concrete examples of how these rights may be exercised.
Here are a few quick examples of these amendments. A victim's right to information should be and would be supported by amendments to the Criminal Code allowing a victim to request a copy of a judicial interim release, a bail order, probation, or conditional sentence order. This information, for the most part, is already available to victims and their families. This would ensure greater availability and access. Amendments to the Corrections and Conditional Release Act would allow victims to request information regarding an offender's correctional plan or release program. This is of great interest, as we can all imagine, for victims. A victim's right to participation — something as basic as that — in the criminal justice process is supported by amendments to the current victim impact statement provisions of the Criminal Code.
I can remember practising just after law school when victim impact statements were first entering into practice. Victims to that point, other than their testimony, had virtually no voice in the process. Those amendments clarify the information that a victim may include in their victim impact statement, promote consistent practice through a new victim impact statement form and allow victims to use testimonial aids while presenting their statements.
This again has been become much more common practice in recent years. I note for the record that one of the more innovative improvements that we have seen in our treatment of victims, child victims in particular, is the use of something as compassionate as taking a pet to court. For the record, Mr. Chair, in Edmonton just two weeks ago, a judge, for the first time, ruled it permissible for a child in a sexual assault case to have their dog on the stand. It allowed them to be in a better place, a place of comfort and compassion where they were able to provide their important testimony to the court for its consideration. These are some basic changes that are happening that we hope to entrench and codify through this bill.
I note there's also a provision allowing for community impact statements. These are to describe the impact of crime on a community at large. This has been done in practice, and what we hope to do through this bill is to codify that practice.
A victim's right to protection would be supported by amendments to the Criminal Code and its scheme governing the production of third-party records in criminal trials involving sexual offences. These amendments would ensure that all historical sexual offences are included in the scheme, would double the notice period for an accused serving their application for the production of third-party records, and would require the court to consider the right to personal security of the complainant or the witness when deciding whether to produce a record.
Amendments to the restitution provisions of the Criminal Code would require the court to consider making a restitution order in all cases and to provide reasons when it is not ordered — the classic reverse onus. Provinces and territories would be able to designate a public body to assist with the collection of unpaid restitution orders to remove this burden from victims. The collection of unpaid fines is a serious issue, as we know,
Mr. Chair, in conclusion, I believe that Bill C-32, the victims bill, will change the landscape of the Canadian criminal justice system for the better, as some of the insertions within our system in recent years, which I've mentioned: the child advocacy centres, the National Office for Victims, the Victims Fund of $140 million accessible to provinces, and programs to help deal with the trauma associated with crime. It will change essentially how victims are viewed and how they view themselves. They are valued participants, necessary participants, in our process. They deserve to be treated with greater respect and inclusion, and that is the genesis of Bill C-32. It is real life experiences of victims who have gone through the process.
I want to commend the many people who are turning their attention, including you, to this important bill. I want to thank specifically the two ladies to my left, Pamela Arnott and Carole Morency from the Department of Justice, for their outstanding efforts and personal investment in bringing this bill forward. It is my hope that the application of this bill will ensure a future generation who enter the Canadian halls of justice will have a much improved, efficient and compassionate experience. I look forward to your deliberations but also to the swift passage of this landmark piece of proposed legislation. I thank you for your attention.
[Translation]
Hon. Steven Blaney, P.C., M.P., Minister of Public Safety and Emergency Preparedness: Honourable senators, it is a privilege to be here this afternoon with my colleague and friend, Minister MacKay, to support him in our discussion about the victims bill of rights act.
I feel I must acknowledge the contribution that each of you has made. As soon as Minister MacKay was sworn in, he undertook broad consultations with victims' groups and associations. I had the opportunity to participate in those meetings, some in Montreal and others in Quebec City, with Senator Boisvenu, whom I salute, and who I feel speaks on behalf of victims from Quebec.
This is an important time for us because we have an opportunity to change Canadian legal history by passing this important bill to enshrine victims' rights in Canadian law. From a practical perspective, I often tell the minister that I am, in a way, his arms and hands because, as you know, Public Safety Canada is responsible for applying the law with respect to police services, correctional services and the Parole Board of Canada.
The charter lays out the principles, but it also provides more specific tools at each stage of the victim's interaction with the authorities as part of the justice process so that justice can be done. I would like to talk about those elements with you this afternoon. If I may, I would like to continue in English.
[English]
This historic bill will provide victims of crime with rights enshrined in the federal statute. Our government has long been clear on the need to rectify an imbalance in our criminal justice system. As Minister MacKay has just said, we could count on the support of the people from the Department of Justice, the people from the Department of Public Safety with me this afternoon and the people from Correctional Service of Canada, including Commissioner Don Head.
[Translation]
We feel that too often, the system does not sufficiently address the needs of victims — the innocent people who have suffered physical, emotional and economic loss at the hands of offenders. Minister MacKay reminded us that we often forget to mention the considerable costs associated with crime and the irreparable harm that those costs inflict on victims.
That is why correcting this imbalance has been a priority for our Conservative government from the beginning. As you know, Mr. Chair, our government has introduced several legislative measures to put victims back in the centre of our legal system. I would like to salute Minister MacKay and his predecessors for working to effect major improvements in this area. Now their efforts have culminated in the introduction of the Canadian victims bill of rights.
[English]
We believe, as Canadians believe, that our laws, programs and policies should reflect the basic principle that every victim should be treated with courtesy, compassion and respect.
[Translation]
Recognizing and addressing the needs of victims of crime is a central component of our government's criminal justice reform agenda. The bill before you today will help to give victims a more meaningful voice in our criminal justice system.
[English]
We can say this with a great degree of certainty because in developing this historic proposed legislation, we were informed directly by victims of crime, stakeholders and citizens from across the country during extensive consultation. The four pillars are the right to information, the right to protection, the right to participation and the right to restitution. The victims bill of rights act would provide victims of crime the right to request and receive meaningful information.
[Translation]
Access to information was the issue raised more than any other by victims during the consultation process. The justice system ensures offenders are informed of how the process works and what happens at every stage. Victims should have that same right.
And so, this bill would provide victims with the right to request and receive specific information, from the status of the investigation into the offence against them, to the scheduling and outcome of criminal proceedings. In the continuum of the justice process, we have to be able to keep victims informed at every stage.
[English]
Once the convicted criminal has paid their debt to society, the victim will be able to choose to receive information regarding the release of the criminal. This will include where, when and how. Tragic stories of a victim living in fear that they'll walk around the aisle in their local supermarket and be confronted by the person who victimized them will be a relic of the past.
[Translation]
In fact, once this bill is made law, the Correctional Service of Canada would be required to provide registered victims with this information 14 days in advance of the release, wherever possible and when there are no public safety concerns about doing so.
Another improvement, and one identified by many victims during our consultations, would ensure that victims are granted access to a photograph of the offender at the time of release. This is a practical gesture for victims that also helps reinforce their right to protection.
The last element I will highlight in regard to the right to information is that victims will automatically be provided with copies of the Parole Board of Canada's decisions should they wish to receive them.
[English]
With regard to a victim's right to participation, we have taken steps to ensure that victims have the right to submit and have their views considered at all stages of the criminal justice process, including for the purposes of conditional release.
[Translation]
In addition, we have taken steps to permit victims who may be unable to attend a parole hearing in person to listen to an audio recording of the hearing. This provides those victims who cannot attend with a way to be informed of the proceedings.
Where the right to protection is concerned, this bill would require all criminal justice personnel to take the security of victims into consideration in all decisions.
To put this into concrete terms, we have proposed amendments to the Corrections and Conditional Release Act that would require the Parole Board of Canada to impose non-contact orders and geographic restrictions on offenders under long-term supervision orders when it is reasonable and necessary to do so. Tragic incidents like the one that happened to Officer Sandra Dion will be a thing of the past once this bill is passed.
[English]
Just briefly, on the last right, the bill would also provide victims with the right to restitution. In this way, we recognize the financial burden that can be shouldered by victims. Under this right, the courts would be required to consider ordering restitution for all offences where losses can be determined.
[Translation]
Beyond the list of rights we proposed for victims with this legislation, we have also taken steps to provide them with a formal mechanism to file a complaint with the appropriate federal department or agency if they believe their rights under the bill have been breached.
With these rights in place, victims will have more choice and options for meaningful participation in the criminal justice system. We feel that these rights will do much to empower victims and give them the voice that they want and deserve.
Above all, by entrenching these rights in legislation, our government will help to ensure that Canadians who have been the victim of a criminal offence do not feel further victimized by our criminal justice system.
In conclusion, we hope that the victims bill of rights will be the end result of a parliamentary process. We are here in the Senate, and we hope to see this bill become law soon. This is definitely the beginning of a new chapter in which victims will have a voice within our criminal justice system.
[English]
I thank you for the committee's time, Mr. Chair, and I welcome any questions you may have for Minister MacKay or me.
The Chair: Thank you, minister. We'll open the floor to questions now, and we'll begin with the committee's deputy chair, Senator Baker.
Senator Baker: Thank you to the witnesses. I must say, Minister MacKay, that your work prior to the introduction of this bill is quite admirable. You went to the West Coast of Canada, the East Coast of Canada, Central Canada. You went to the Prairie provinces, and you met with those people in the legal community concerning the matters that you hope to address in this bill. That's very commendable, and I think perhaps it's the reason why, generally speaking, the Canadian Bar Association approves of the bill. I say "generally speaking" because I haven't read their submission as yet.
However, minister, you yourself were a Crown prosecutor once upon a time, and you also did some civil law. You did criminal law, and you would understand the question. I'll put my two questions off the top and allow you to answer them.
My concerns — I imagine the concerns of the defence lawyers — would be these: section 17 says that on application of a witness or a prosecutor, the court can make an order directing that any information that could identify the witness not be disclosed in the course of the proceeding.
Now, under our law today, under the Constitution, under disclosure, under Stinchcombe, you have to, as a Crown prosecutor, give a list of your witnesses, prior to trial, to the defence and give a "can say" or "will say," as some people call it. This goes completely counter to that requirement of disclosure under our present system, so that's my first question.
My second question is this: What Crown prosecutors may object to, in my reading of the bill, is that you say here, in section 21: ". . . the court shall, after accepting the plea of guilty, inquire of the prosecutor whether any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement."
As you know, minister, these pleas of guilty and not guilty are sometimes taken off the top when somebody is on their second appearance, saying, "How do you plead to these charges?" They're given some disclosure, and somebody says "not guilty." Or, during a proceeding, an accused comes in and says, "I plead not guilty." They may change their mind two hours later, and yet you're placing a requirement in here that a Crown prosecutor has to inform the victim of a not guilty plea.
Now, my third — just a point, because you've done some civil law — you mentioned here about the restitution orders. Restitution orders, under the Criminal Code provisions, are only for pecuniary reasons, not non-pecuniary reasons.
Now, you have here that, if the offender does not pay up, the wording is: ". . . to have the order entered as a civil court judgment . . ." It should have been "filed" because you file a court order, but filed as a civil court judgment. Pecuniary damages. The biggest damages in civil court are non-pecuniary — somebody's pain and suffering, loss of enjoyment of life. General damages are not taken into account.
I don't think the case law is clear as to whether or not, if you enter, as a judgment, just pecuniary damages that you can prove that you had to pay out, that may cancel out. If you accept that as a judgment, that would cancel out your right, then, to go after the same person for non-pecuniary damages.
Could you address those three things? Generally speaking, minister, I had to congratulate you off the top because I've heard from several people who are in the legal community how pleased they were with your consultation.
Mr. MacKay: Thank you very much, senator. Mr. Chair, through you, these are very good questions and questions that I hope I can shed some light on.
You're absolutely right with respect to the appearance of witnesses anonymously. I would firstly say that, broadly, this is not a new concept, as we have seen. Certainly, the entire youth criminal justice system is predicated on protecting the identity of a young person for reasons that we're all familiar with.
We're also aware, increasingly, of the necessity in cases that involve organized crime, for example, terrorism, which is certainly a timely discussion, for the protection of certain witnesses, sometimes witnesses who are working with security forces, law enforcement, and have been working undercover, which is the case with organized crime. The protection of their identity is absolutely essential because of the risk involved, and thus it is the same, within the criminal justice system, for victims.
In many cases, we have seen — and this is perhaps the most classic example of re-victimization — an individual who was the victim of sexual assault cross-examined by an unrepresented accused. That's why we are seeing now the more common practice accepted by the courts of testimonial aides, that is, to testify either behind a screen or via closed- circuit camera from another location. This is done always keeping in mind, as you rightly pointed out, the necessity for full answer in defence and the necessity to be able to face your accuser through some modern means, in which the courts are now much more accommodating.
So I would suggest to you that that right and that determination made by the court, made by the judge on application, in the circumstances where the Crown presents evidence that it is not too prejudicial to proceed in this fashion, is in the interests, as well, of the accused, which have to be given fair balance with the interests of the victim.
So this is a discretion to the exercise within the court based on evidence, based on submissions that would be presented at that time.
In the interest of time, I'll move to your next question with respect to the guilty plea, which is absolutely correct. I encountered many times, as you would expect and as many participants in the justice system will relate, the classic courtroom step of change of plea. It is most often dramatic when a jury trial is about to take place, the jury has already been assembled, the court is preparing for the trial and it all falls apart because of a plea bargain.
When it all falls apart — and when I say falls apart, I mean the trial doesn't proceed for those reasons — sometimes the last person to hear is the victim. This can be very traumatic. This can be very insulting. There are obviously circumstances in which it isn't always possible because of scheduling, changing circumstances, shifting sands, but what we are attempting to do, to the greatest extent possible, is to always have the victim included in that discussion, in that decision. But reasonable efforts being made by the Crown to inform the victim prior to this being announced to the court is what we hope to achieve.
What we are requiring here, by statute in this bill, is that the judge makes that inquiry. This is done to encourage a practice of consultation. It isn't an absolute unassailable requirement that the Crown does this in all instances, but it is meant to encourage allowing and affording that victim the dignity of being consulted to the greatest extent possible.
I worked very closely with members of all parties on a report that I would also recommend to you for background called Victims' Rights: A Voice, Not a Veto, and this was a very common refrain from victims. It was a parliamentary committee report, and victims would say, "Look, we don't want to stop the wheels of justice from turning." And the last thing I would want to see happen as a result of this bill is that we delay process. One of the major complaints that we hear from victims is delay.
But for the sake of a short adjournment, which is sometimes all it takes to ask the court for time to consult with the victim prior to announcing to all present that the trial will not proceed by reason of a guilty plea, this is something we think is very important in respecting victims.
The Chair: Minister, could I ask for an abbreviated response on the restitution question? I try to allow a bit of latitude here, but I encourage you to —
Mr. MacKay: I will be brief. I'm excited because I only get 30 seconds in Question Period, Mr. Chair, and these are sometimes very complex and involved answers.
On the issue of restitution, this is a major part of the bill that goes to the compensation of victims. It may shock some of you around this table to hear this figure. It's actually estimated that the cost of criminality in Canada annually is approaching $100 billion. Ninety per cent of that cost is borne by victims. That includes all the costs of lost productivity, damage done and treatment.
I say that only as the background to answering your question with regard to a civil cause of action for damages. This is separate and apart. There is a very distinct separation here between what the court would order in a criminal case for things such as compensation required for damage to property, clothing, et cetera, or for treatment necessary as a direct result. It has to be attributable to the crime. This includes trauma, certain ongoing treatment. The court would be given and should be given, in my estimation, the authority to order that type of restitution.
Should the person pursue another course of action, a civil action in your correct example, the restitution ordered by the criminal court would have to be considered in the totality of any award that might later be granted in a civil action.
I hope that answers your question.
[Translation]
Senator Boisvenu: Mr. MacKay and Mr. Blaney, thank you for being here. I would especially like to thank you for the work that has been done over the past two years, work in which I was an active participant. To me, sponsoring this bill is more than an honour. It is a privilege to represent victims of crime, not only from Quebec but from across Canada.
It was 10 years ago that I asked Prime Minister Harper to do this. It was in Sherbrooke in August 2005. I asked him to give Canada a victims bill of rights to ensure that victims and criminals have equal rights within our justice system.
I would like to begin by thanking you, Mr. MacKay, for the word "bill." We had a debate that lasted many months over the terms "bill" and "declaration." You were among those who insisted on "bill." For victims of crime, the word "bill" is very important. Victims of crime are not represented in the Charter of Rights and Freedoms. Offenders are to a certain degree, I believe, but victims are not. The fact that now, this week, this spring, victims of crime have their own bill is a significant event. This is one of the greatest moments of the past century for them, perhaps one of the greatest moments since Canada came into being.
People might criticize the bill for not going far enough or for going too far. The bill is not an end in itself. It is a tool that will change over time. Mr. Minister, based on your interactions with victims, can you tell us how this bill might change over time? It will change a little, just like the Charter of Rights and Freedoms has changed over the past 30 years. I would like to hear your point of view on that by way of reassuring victims, who also want to know how their rights will change.
Mr. MacKay: Thank you very much, Senator Boisvenu. I'm sure many people understand that you have a lot of experience because of the tragedy that touched your life. You take the time to work hard for victims, not only in Quebec, but across the country and around the world. I greatly admire your work. Working with you has been a wonderful experience for me.
In answer to your question, as with the Charter of Rights and Freedoms, the implementation of this bill is the key to success. It is essential that we work with all of the provinces and territories to implement and enforce victims' rights. We must also have the necessary resources to carry out this shift. As I see it, this bill will bring about a shift. Training and acceptance of certain practices within the system are also essential. It will take some time for various actors, such as judges, crown prosecutors, lawyers, police officers and everyone to adapt to their new duties and responsibilities.
As is always the case when bringing about monumental change in the legal system, there has to be an adjustment period. I believe that professionals and everyone in our justice system will have the desire to effect this change to benefit not just victims but the entire system and the concept of Canadian justice.
Mr. Blaney: I would like to add to that, Mr. Chair, Senator Runciman.
[English]
You will understand that I have the utmost respect for Senator Boisvenu. For my part, he has opened my eyes to the reality of a tragedy that can happen in one's life and how sometimes the system was not well prepared to support those individuals.
[Translation]
I'd like to add, Senator Boisvenu, that the victims bill of rights will bring about a paradigm shift within our justice system. That means we will be making tools available. Minister MacKay frequently mentions his faith in judges and the legal system as well as police and correctional services, which have a more human approach to victims of crime. He provided a very good example.
Today he told us that, a few weeks ago, a judge decided that a child who was a victim of sexual assault could bring a pet to court. To me, that is a minor gesture, but I'm sure it made a big difference to that child. One small gesture at a time, the bill will make our courts more human and will ensure that victims are not revictimized by our justice system.
This is an important step forward, and as the minister said, I am sure that it will go beyond words to effect a change in the mentality of our justice system.
Senator Hervieux-Payette: Welcome, ministers.
I would like to begin by stating that I fully support the principle of a victims bill of rights that will make things better for victims.
Fortunately, I have not experienced this in my family, but having worked with the Solicitor General of Canada in the past, I know that one of the most important things for victims is getting their normal lives back. For victims' loved ones, the most important thing is getting psychological care and financial restitution.
Mr. Minister, earlier you talked about a $140 million fund. Is that a new fund, or was it already in place? What is that fund for? You said that there could be an order, but does that happen during the accused's trial or does it involve a separate procedure in another court for victims to obtain restitution once the trial is over? Are there two courts? Who makes the order, and who enforces it? People who are charged and convicted do not always have the financial resources to pay.
Mr. MacKay: There are several funds associated with this bill.
[English]
The $140 million is actually the Victims Fund that has been in place previously for some time. In fact, much of that resource has already been dissipated through provinces, victim services and agencies that deal directly with victims, and some of that funding is still being consumed.
There will be funding, inevitably, directly associated with the implementation of this act, which I think is the focus of your question, and that funding is, frankly, still being negotiated with provinces and territories. As you can appreciate, there are specific needs in various provinces. Some victim services are, frankly, far more advanced than others. One of the bigger challenges, not surprising to this table or many in the system, is the challenge of distance that we experience in the North. The challenges with respect to the delivery of some of these programs in remote and rural communities are enormous.
What we are attempting to do through the bill is simultaneously fund efforts to improve access to victim services and to basic justice across many jurisdictions and with many different agencies. Budget 2014, our previous budget bill, confirmed that the victims bill of rights will provide victims with online resources to help individuals access some of these existing programs.
What we're attempting to do through the bill is open up greater public awareness to some of the existing programs and funds. There is, I can assure you, a very active undertaking on the part of the Department of Justice as well as Public Safety to see that we make better use of existing programs, quite frankly. Some of these programs are not fully utilized, so we want to maximize those benefits. There will be further discussions around further allocations of resources as we roll out and implement this bill in its entirety.
[Translation]
Senator Hervieux-Payette: You said that, under sections 6, 7 and 8, victims have the right to obtain information upon request. Will there be someone assigned to that task? Will that person be in your department or Mr. Blaney's? It's fine to say that people can ask questions, but who are they supposed to ask? Is there already someone designated to implement those provisions? One problem victims had was not knowing who to talk to. Will there be a person they can talk to?
Mr. Blaney: I can answer that. As I said in my remarks, the bill will make concrete improvements to information provided to victims. That information will be provided by Correctional Service or the Parole Board. I talked about key information upon release. Additional funds will be allocated to increase resources so that we can provide notification services.
I also talked about the photos that will be available when offenders have served their sentences and are released. There are also financial resources earmarked for human resources and database management. I mentioned the recordings that will be made and made available. Financial resources will be allocated. We have consulted our experts and Correctional Service representatives to figure out the funding needed to implement the mechanisms that will enable us to provide information to victims.
[English]
Mr. MacKay: There is an important distinction between restitution programs that exist at the provincial-territorial level and further support mechanisms available through the Office of the Federal Ombudsman for Victims of Crime. I believe you will be hearing from Ms. O'Sullivan as well.
What we are attempting to do, to use the old Maritime expression, is to raise all boats, that is, increase delivery of services, increase access to restitution programs and to see there are complaint mechanisms, whether it is a complaint in the penal system or a complaint about process that happened. Provinces are at various levels of service and response based on, quite frankly, how much time and investment they've already placed in either an ombudsman for victims — some provinces have done more than others — and the ability to follow up on the restitution demands that are very often made by victims of crime.
Senator Plett: Thank you to both ministers. I like the analogy you used, Mr. MacKay. You're a partner fighting crime, and I thank the two top Canadian crime fighters for being here this afternoon. As Senator Boisvenu said, we appreciate all the work that you do on behalf of our country.
My question is to both of you, and it has to do with the consultation process. Senator Baker was quite complimentary on the consultation process you had done, Mr. MacKay, travelling around.
Yesterday in the chamber, we heard from the critic of the bill, Senator Hervieux-Payette, that the province of Quebec was not consulted.
I would like you to walk us through some of the consultation process that you had in the province of Quebec, my province of Manitoba and others. Did the provinces also supply input from victims? Could you give us a brief overview of the consultation process?
Mr. MacKay: I will try to be brief. Thank you, Senator Plett, for your kind words. I can assure you that all provinces were not only consulted but consulted on numerous occasions through numerous venues through numerous officials, and directly. My predecessor, Minister Nicholson, had occasion to meet with our counterparts at the provincial-territorial level, as have I. This bill and its progress have been a staple item on that federal-provincial- territorial agenda. We had numerous follow-up opportunities to consult with provinces and territories at the officials' level. I can assure you, with respect to the ongoing discussions we're having with provinces as well, that I've had numerous discussions with my provincial and territorial colleagues. At a federal-provincial-territorial working group, they've had literally ongoing regular contact with both the formulation of the bill and improvements, as well as input from those jurisdictions as to how we can make this work.
Online consultations also took place. This is all outside, or I should say in addition to, the face-to-face consultations and the personal consultations that I had in the formulation of the bill, very ably assisted by the two ladies to my left throughout that process. We're aware of provincial concerns. We're aware of certain issues that were common refrain, not the least of which was the issue of prosecutorial discretion. We have had ample opportunity to consult with our provincial and territorial partners; and that is part of this evolution I mentioned earlier in response to a question from Senator Boisvenu. This really is a holistic effort on the part of our justice system. Let's never forget that the administration of justice does fall to the jurisdiction of the provinces, so it was essential that their input was heard and included and is included in this bill.
Senator Plett: Do they all support the bill?
Mr. MacKay: I would not be presumptuous. There have been a number of changes in governments across the country since this bill was first begun and the path that it has followed since. I would say unequivocally that all provincial Attorneys General very much support this bill in principle. You'll hear from witnesses that have ideas on how to improve it and how to present certain amendments; but the essence of this bill and the entrenching of victims' rights is broadly supported across this country. It is my hope, I'll say as a final comment, that we will see on the walls of many lawyers, including lawyers at the Department of Justice, this bill of rights, right next to the Charter of Rights.
Mr. Blaney: I will add to that, if I may, senator, because Quebec was mentioned.
[Translation]
I was at the consultations that Minister MacKay attended in Montreal and Quebec City, together with Senator Boisvenu.
Through those consultations, we have developed a close relationship with representatives of victims' organizations. Recently, I was in Victoriaville, where the Prime Minister was participating in a round table with victims. Just before a confidential part of the session to enable victims to share some very moving stories, the cameras that were there left the room. One of the victims said that it was the first time the cameras had been focused on her; usually they focused on the offenders.
Of course, the people were grateful to Prime Minister Stephen Harper, and they told him that he had done what no other prime minister had done for them: recognize them, give them a voice and implement legal tools to ensure recognition for their rights and enhanced protection for them.
When a mom who has lost her three children or a man who was abused by members of religious orders says things like that, it really hits home. There is no doubt that this charter is fully justified.
[English]
Senator Joyal: I would like to focus on clause 22, which the minister alluded to in his presentation. You've termed the clause, which is entitled "Primacy in the event of inconsistency," quasi-constitutional. I'm wrestling with that qualification of the clause. I read clauses 25, 28 and 29 and found that the four rights you outlined — to information, protection, participation and restitution — are protected only by a complaints mechanism, which is an administrative mechanism. It's not a court or legal mechanism on the same basis or at par with section 24 of the Charter, which is pretty clear, such that if your right is violated, you have the right to go to court and the court will adjudicate.
Under this bill, if your right is violated you have a complaint mechanism that is essentially administrative. According to clause 28, you have no cause of action, and according to clause 29, you have no appeal. Therefore, to term clause 22, the primacy clause, as quasi-constitutional, and I will be very polite, leaves me without appetite. I have tried to compare clause 22 with section 3 of the Canadian Bill of Rights, which is the construction interpretation section whereby no act of Parliament should be construed as infringing on the rights enumerated in the Bill of Rights. This clause affirms the primacy but does not have the legal reach that it should have to be truly meaningful if a victim feels that his or her rights to restitution, participation, information and protection have not been respected.
Is the term "quasi-constitutional" the right description for what we are proposing to do in this bill? I would not like people to think that they would have a Charter right. I know that you and Senator Boisvenu are very keen to use the word "charter," but in the minds of Canadians, when you have a Charter right you can go to court to have it pronounced, respected and ordered. With this clause, you're left at the entrance door, if I may use that image and expression.
Mr. MacKay: Thank you very much, senator. With great respect and deference to your knowledge, particularly your intimate knowledge of constitutional law, I would respectfully submit to you that much of my answer is found in the supposition that this goes before a court. The judiciary, in my view, has an extremely critical role when it comes to interpretation of this bill, its primacy and its quasi-constitutional status. There is no question, and I would be the first to agree, that the advantage held by the Charter of Rights and Freedoms being entrenched in the Constitution immediately elevates this to a different stratosphere. However, becoming part of the criminal law and the entrenchment of these rights in our justice system, through the Criminal Code, the Corrections and Conditional Release Act and other legislation, certainly puts before the court the ability to interpret and, in some cases, to work to try to disentangle the competing rights that exist regularly in our society and often are in conflict.
We are attempting here, by entrenching and codifying these rights to information, protection, participation and restitution, to elevate those rights of a victim and to do so in a way, to use your words, through a cause of action, to place them before a court for consideration and to do so in a way that doesn't trump or negate other rights but that puts them on par. That's why it's specifically mentioned. It is very much Cartesian in its presentation that this is not meant to automatically trump other rights. It's not meant to override the Bill of Rights with respect to language, privacy and other quasi-constitutional rights. It is meant to be there very much as part of our wish that this section create general standards of interpretation that are to be applied to other federal legislation, other orders, other rules, other regulations and then read in, as judges do regularly when it comes to this competition of rights that exists often when clashes in the law occur.
So for that reason, we think that it can coexist, that the interpretation of existing federal legislation and statute can be developed and, in fact, will be part of the evolution and the modification of the law. But most importantly and finally is the treatment of victims, and by entrenching it in law, we believe that this automatically puts victims on a much firmer constitutional and legal standing.
Senator Joyal: In your opinion, is it an interpretive clause or a substantive clause granting rights recognized and affirmed by the court?
Mr. MacKay: I think it will be affirmed by the court in future litigation, so I believe it's interpretive. And I believe that it will be like the Charter, the subject of much debate and some consternation, and eventually precedent will emerge.
The Chair: Senators, I have to interject. The ministers have stayed well beyond their departure time. We want to thank them again. The officials will remain.
I introduced the officials earlier, but just to refresh our memories, joining other officials at the table now is Don Head, the Commissioner of Correctional Service Canada; Richard Clair, the Executive Director General of the Parole Board of Canada; and Angela Connidis, Director General of Corrections.
Welcome to the table. I appreciate you all being here. I understand you have no opening statements.
A number of senators did not get the opportunity to put their questions to the ministers, so I'm going to deviate a little bit from the normal procedure, if Senator Baker doesn't seriously object. We will begin with Senator McIntyre.
Senator McIntyre: Thank you. I note that the bill is applicable to offences investigated and prosecuted in the criminal justice system, except in the military justice system. For example, I have before me a copy of the bill. Section 18.3 specifies that it does not apply to service offences which primarily affect military personnel.
Is it the intention of the government to bring separate legislation in order to deal with the military justice system, recognizing the rights of victims of crime? Ms. Arnott, would you care to answer?
Pamela Arnott, Director and Senior Counsel, Policy Centre for Victim Issues, Department of Justice Canada: I'd be happy to, senator.
Yes, absolutely. Minister MacKay has indicated to the house that it is the government's intention to bring forward separate legislation that would incorporate the ideas of the proposed victims bill of rights into the military justice system.
Senator McIntyre: You're well aware of sections 738 and 739 of the Criminal Code, which deal with designations by regulations. I note that the bill would allow provincial governments to designate a person or body to be the public authority for this purpose. I'm drawing your attention to the new section 739.4 of the code.
Bill C-32 would allow the provinces to make such designations on the basis of orders-in-council rather than by way of regulations.
What was the purpose of this amendment? Was it meant to avoid the possible delays that could have resulted from the regulation-making requirement initially proposed in the bill? As you know, an amendment was made by the house committee.
Ms. Arnott: You have it exactly right, senator. That amendment was made at the request of provinces and territories. Minister MacKay referred to a subcommittee of the FPT Working Group on Victims of Crime, which had extensive discussions throughout the fall about their views, their concerns and their thoughts about Bill C-32. It was as a result of those discussions that an amendment was suggested to change how this enforcement body could be created. It was the view of the provinces and territories that it was not only a question of delay but also one of cost to them; they wanted to be moving forward on improving restitution to victims more quickly.
Senator McIntyre: It's quicker by orders-in-council than by regulations. Is that right?
Ms. Arnott: That's right.
Senator Batters: Thank you very much, all of you, for being here today on this important bill. Prior to coming to the Senate, I practised law in private practice for many years in Saskatchewan, and I was then the Saskatchewan justice minister's chief of staff for almost five years. So I appreciate how Minister MacKay set out his legal experience on both sides of the courtroom and how that experience has made him appreciate the huge importance of this bill. I share that experience and appreciation for this monumental bill. Those of you who have had substantial work on this, I thank you for that.
I also had the opportunity to join Minister MacKay at the round table session that was held in Saskatoon with victims of crime, front-line workers, prosecutors, all of that sort of thing, during his cross-country consultations in the development of this bill. The stories that people brought to that table were harrowing and heartbreaking, and we heard from family members from high-profile, tragic cases in Saskatchewan. They were there for no reason other than that they wanted to make a contribution. They wanted to make things better for some future family going through a similar tragedy. I'm wondering if you could please tell us how that consultation process, going across the country, informed the development of this bill.
Ms. Arnott: Thank you, Senator Batters. I was privileged to be at round tables with Minister MacKay, Minister Blaney, Senator Boisvenu and you. I think Senator Boisvenu expressed it well; it is humbling to be with those people. Throughout those round tables in every province and territory, some provinces and territories several times, victims indicated to us that, as you say, they wanted to make the system better for the next person. We heard ideas from victims of historic sexual offences that they wanted the third-party record system to include them. We heard from victims about the importance of testimonial aids, and that resulted in the proposed amendment to expand the use of testimonial aids. We heard from Crowns about how rigorous the test of "to necessitate" — that testimonial aid must be necessary — was and that, in their experience, changing the test for testimonial aid to "facilitate" would bring a better balance into the system.
I could speak for really quite a long time about what we heard from those consultations, but it was a lot of little ideas, as Minister MacKay said, very simple concepts that got to the bottom line that people wanted to be heard and wanted to be treated with respect. That's what we've tried to do.
Senator Batters: Common-sense ideas, and Minister MacKay talked about something that I'm sure touched all of our hearts, the young sexual assault victim who got to bring his dog to the witness stand with him. Thank you for that. I'm also wondering if whoever would be the appropriate person to answer could please tell us what funding and other services the Government of Canada presently provides for victims of crime.
Ms. Arnott: Maybe I could start, and then I will ask my colleagues in Correctional Service and at the Parole Board to jump in. At the Department of Justice, we have, first of all, the Policy Centre for Victim Issues, which was created as a result of A Voice, Not a Veto, that report a number of years ago. The Policy Centre for Victim Issues brings together lawyers, policy analysts and researchers to bring a victim's voice into criminal law development, and that work will continue. At the Department of Justice, we have the Victims Fund, which Minister MacKay referenced. There is $11.5 million available annually, and that money is provided to provinces and territories, to non-governmental organizations and to individual victims, all with the goal of improving their voice in the criminal justice system.
So we've funded projects that range from improving services for women who are fleeing domestic violence to pilot programs about restitution. We provide funding for victims to attend parole board hearings, a wide, wide range of programs. I wonder if my colleagues would like to add.
Don Head, Commissioner, Correctional Service Canada: Sure. Thanks, senator, for the question. Within Correctional Service Canada, we currently have 33 staff members who are dedicated to providing services to victims. They currently provide services to about 7,900 registered victims within corrections. Primarily, they help them register as victims. They provide them with any information about the system, particularly the federal correctional system. We'll give them clear information about the kinds of requests that can currently be made under the law. As well, I help process the documents that they request.
Last year, we helped to respond to about 56,000 requests from victims. We provided in the order of 192,000 documents to victims. In addition to the 33 victim services staff, we also have 18 staff who are dedicated to restorative justice opportunities, victims who may want to partake in those kinds of activities. We have staff who facilitate that, and we have about 374 restorative justice cases currently active.
Senator Batters: In addition to all of that, there's the Federal Ombudsman for Victims of Crime, too. Thank you very much.
Senator McInnis: Thank you for being here. It was a bit of dØjà vu for me when I started researching and reading this bill. Back in 1989, as Attorney General for Nova Scotia, I introduced and got passed the victims bill of rights there. I was talking to the office just the other day, and they're absolutely delighted with this bill and think that it will be particularly effective in restitution and collection of orders.
I really like the bill, but I need an explanation because I can see where this is going to be a bit cumbersome. As to the definition of "victim," when you have emotional harm and include that individual as being a victim, who is going to adjudicate this? How is that going to be determined? I think that could hold up the system somewhat. I don't know who the appropriate person is to answer, but I'd like a better explanation as to why that's there.
Ms. Arnott: I'm happy to answer that. The inclusion of emotional harm is not new. It's not being changed in this bill. The definition of victim in the Criminal Code already includes physical damage, emotional damage, property damage. What we're proposing to change in terms of the definition of "victim" is that the definition can currently be found in five different places in the Criminal Code and, as well, in the CCRA. We're consolidating the definition so that there is one single reference as to who is a victim.
Right now, the courts have not had difficulty with that idea of emotional harm. We've not found case law where the courts have been inundated with people whose only harm or loss as a result of an offence is emotional. Usually it's accompanied by other forms of harm or loss, and emotional is one of the consequences of the offence.
Senator McInnis: Of those 7,000 victims that you have registered, how many of those would be there through emotional harm?
Mr. Head: We wouldn't necessarily keep statistics in terms of who falls into what category, but our approach, similar to the Parole Board of Canada, is that we intend to be more inclusive than exclusive. Truly, in the victims bill of rights, that's the message that is being given. The only times that we've ever denied somebody from being a registered victim is when, clearly, there is no association with the offender, with the crime. It's more about just seeking information about the offender, and there's no relationship. So, again, we're looking to be inclusive as opposed to exclusive.
Senator McInnis: Just one very quick question: Of the 7,000, how many attend hearings?
Richard Clair, Executive Director General, Parole Board of Canada: Last year, about 1,900 attended hearings. About 264 presented statements at the hearing. We have about 700 or 800 registered victims, as well, at the Parole Board.
Senator Baker: First of all, getting back to the restitution order, if I could ask you, I notice you have a new form, 34.1, in the Criminal Code.
To my recollection, Form 34.1 was always used for the fraud provisions, section 380 of the Criminal Code. I think if you looked at the Criminal Code now, under that form you'd see section 380.3) and then fraud, wouldn't you?
You're now seeking to replace it with Form 34.1. However, you have under that heading subsection 737.1(4), so 34.1 is being replaced by this. So what form does somebody use in the case of fraud and restitution under the fraud provisions of the code, section 380? Because here the heading is 737.1. You'll notice it says, "Form 34.1 in Part XXVIII of the Act is replaced by the following."
Let me go on with my question while you look that up. With restitution — verify this if I'm incorrect — there is nothing new in the Criminal Code, and sections 738, 739 remain there; correct?
Section 741 has changed, the first part, and 741(2) is not changed, which is that an action in civil court shall not be influenced by an action in criminal court. Am I correct?
Ms. Arnott: Yes.
Senator Baker: You've been talking about emotion and this sort of thing, but the only restitution under this bill is for what you can find on paper that you paid out for a service. It is entirely pecuniary. It's not restitution for emotional damage or any other damage at all, which is in complete opposition to what you would have found in a civil action.
My question to you is this: Where is the case law that says one works with the other or that one will cancel out the other? It's not a new question, because 741(2) is already in the Criminal Code and remains there.
My second question is very simple and then I'll shut up. I won't say anything else.
Why is it that under this bill the Gladue provision in the Criminal Code, 718.2(e), has now been watered down with this provision? In my humble opinion, if you look at Driedger's interpretation of statutes, the way this section is constructed, it now says the circumstances of Aboriginal offenders become secondary to the damage they allegedly committed in doing the offence. Why didn't the Department of Justice and the government make two separate provisions under 718(e), and a subsection of that, to address both things for consideration upon sentencing instead of watering down the Gladue principles, which could result in a characterization of unconstitutionality? I'm sure somebody is going to litigate it or try to litigate it in the future.
Those are my questions, the error in the form first.
Ms. Arnott: I'll deal with restitution and fraud, and my colleague Ms. Morency will deal with Gladue and sentencing.
You're correct that the reference of in 380.3 is currently to Form 34.1, so it deals with restitution for fraud. We are proposing in this bill that we will be removing that mention in 380.3 so a victim of fraud who is seeking restitution will be governed by the provisions, which you've named, dealing with restitution. So the new form 34.1 will cover any offences where a victim is seeking restitution.
Senator Baker: But you have 737 under the heading of the form.
Ms. Arnott: Because that is the number of the —
Senator Baker: That's not fraud.
Ms. Arnott: That's the restitution provision.
Senator Baker: So how can fraud apply to it?
Ms. Arnott: That's the restitution provision. Any claim for restitution in regard to any offence is governed by 737.1 and 738.
Senator Baker: That's 738, which is presently in the code.
Ms. Arnott: That's correct. And you're exactly right, the Criminal Code provides that restitution can only be brought for what are essentially pecuniary damages, and there are a number of heads that are listed in current 738. So it could be expenses resulting from identity theft, expenses if you had to leave your home as a result of an offence, those kinds of expenses.
The case law provides that it is for ascertainable damages, very important first principle —
Senator Baker: Not really restitution.
Ms. Arnott: And secondly, it can't be for future losses.
Senator Baker: Very limited, not really for restitution.
Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: With section 718(e), my starting point would be different than yours, and that the amendments proposed by Bill C-32 are not a watering down of the Gladue principle.
Just to be clear, the principle being addressed is a principle of restraint. It requires sentencing judges to consider what is reasonable in the circumstances of each case, compose a sentence other than imprisonment on all offenders, but to pay particular attention to Aboriginal offenders.
It has been interpreted by the Supreme Court in a number of cases — Gladue, Wells, and Ipeelee — and even at the end of the day, the Supreme Court has said that the idea here is not to displace what is a fit and just sentence in the circumstances, and that an Aboriginal offender who commits a serious offence is likely going to receive the same type of sentence as a non-Aboriginal offender who commits a serious violent offence. Where it has implications are at the starting points, what are the other options for sentencing.
Bill C-32 works within the same parameters, within that same framework, does not look to water that down. What it does is direct a sentencing court, when the court is considering the balancing of those different factors, not only what are the circumstances there now but also, in assessing it, what is appropriate given the harm to the victim in the case or the community.
[Translation]
Senator Boisvenu: Thank you, Mr. Head, for being with us today. We are always happy to see you. You appeared before the House of Commons committee on this same bill, and I have here a copy of one of your remarks: "[Correctional Service of Canada has] a good track record around providing physical protection for victims but also of providing emotional support for them as well. As you can well imagine, walking into that kind of environment and facing somebody who has committed a harm to you can result in a significant emotional reaction."
I believe that one of the most important elements in the victims bill of rights is the concept of victim safety. I have been looking after victims of crime for 10 years now, and that is certainly the most common complaint I have heard from victims of sexual assault and domestic violence in particular. They see how the system ignores them before the trial, during the trial and after the offender has served the sentence. I don't know how the Canadian correctional system will apply this bill. I would like to hear your point of view because one of the most common recriminations we hear from victims, particularly women, is that they don't have that protection because they reported their attacker or testified. Afterward, in many cases, the attacker will continue to assault the victim. Take Sandra Dion's case. It was hard to counter the correctional system's decision and ensure that her attacker was not moved to location 100 metres from her house. That was very difficult. I would like to know how, in the future, philosophically, the Canadian correctional system will really make victim safety the focus of its actions.
[English]
Mr. Head: That's a very good point. There a couple of things I'd mention here. In terms of victims who come to hearings and trying to help them deal with the issue of being re-victimized, this is something that both we and the Parole Board of Canada take seriously. We make sure that when they come into the institutions for those hearings and going through that process they have somebody designated to them to provide support to help walk them even through the institution to get to the place of hearing. As well, over the last couple of years we've also gone to the extent of making sure that we have, in some cases, professional resources to support victims after they've attended the hearings. As you can well appreciate, all those emotions can come bubbling up again very quickly after reliving some of the discussions or even just seeing the offender in person.
In terms of managing offenders, particularly when they go out in the community, this has become a priority within the organization regarding parole officers managing those offenders, knowing exactly where the victims live and work, so that those kinds of restrictions are placed on the offender in terms of access.
As well, we're entering into a pilot project in the near future on using electronic monitoring. Obviously, that won't stop people from going there, but we'll know very quickly if they're heading into zones that are restricted. We're continuing to look at both practice and procedures that will assist with the issue that you're talking about, but also at how we can use technology to make sure that we're alerted when offenders may be going into zones that have been declared off limits because of the need to protect victims.
Mr. Clair: The Parole Board of Canada takes statements of victims very seriously and imposing conditions on that, for example, geographic limitations or non-contact. When statements are provided to the Parole Board members, they are taken very much into consideration. In the case of the LTSOs, long-term supervision orders, this bill has specific requirements that if the Parole Board does not impose a condition that the victim has requested, they have to explain why. So that is one of the added articles in this bill of rights.
[Translation]
Senator Boisvenu: Mr. Head, considering the provisions in the victims bill of rights, when the system releases a person who is still considered dangerous or high-risk, can victims be sure that we will make their safety a priority over the offender's right to live wherever he wants?
Can victims be sure that with the victims bill or rights, women in particular will be safe at home and will not run into their attacker on the street someday and be in danger once again?
[English]
Mr. Head: Definitely, senator. That's clearly our overall intent, to make sure victims feel safe, and if they don't for any reason, then to make sure they have the ability to reach out, contact us, contact the Parole Board or contact the police, so that anything causing the concern can be investigated and addressed.
One thing coming as a result of this bill is providing victims with more information about the offender. We know and we've heard from victims that if they have more information, they're more likely to feel a little more comfortable because then they're not going to be surprised. If they know an offender is coming out or being transferred 14 days in advance, they can prepare themselves for that.
If they have a current picture of an offender, they know what they can potentially look for out in the community. All the provisions of the bill are going to help us to ensure that victims feel safe.
[Translation]
Senator Hervieux-Payette: I would like the legislation to have good intentions in terms of its application, especially since two departments are involved. It is worrisome that we do not know whether there will be any co-ordination.
I would like each of you to tell me what will happen under this legislation. Let's look at the example of a rape victim. If the perpetrator is found, is the victim informed that she has rights as a victim? First of all, who will inform her and how will she be informed?
When a person is sentenced and incarcerated, who will ensure that the victim is registered? Who will tell them how to go about it? With respect to Correctional Service Canada, will the same service be available in the 10 provinces? Will the victim be informed that the individual will be released soon and given the details so they are not taken by surprise and do not come face-to-face with their assailant?
With respect to the application of the law, if there is no mechanism to ensure that victims can receive all the services the law is useless because the most important aspect is informing the victims. They may not necessarily have a law degree, and I believe it is important to know who is going to help them.
As for compensation, how will victims file a claim? How will they estimate the costs? Will they have to hire a lawyer? Finally, how will we protect victims throughout the entire process?
Ms. Arnott: If I may, I will answer the questions regarding information and compensation, and I will ask my colleague from Public Safety Canada to round out the answer.
With respect to the right to information, the bill would ensure the provision of general information first and specific information subsequently. We are currently working with the provinces, territories, victim services administrations, Crown attorneys, police forces and our colleagues at Public Safety Canada to ensure the implementation of the provisions.
In your example, when a victim goes to the police, the police force will be required to inform the victim, as indicated in the bill, of its role and the services provided and, subsequently, the status of the investigation, any charges, and so forth.
With respect to compensation, that is a provincial jurisdiction. There are compensation programs in nine provinces; only Newfoundland and the territories do not have a program. It is up to the victim services of each province to ensure that a victim is aware of the program provisions and the amounts they can claim. You are quite right to say that the implementation will require close co-operation, and I believe that we are already on the right path with our discussions with the provinces and territories.
[English]
Mr. Head: I would like to pick up on that. One of the things we do is work very closely with provincial, territorial and even some municipal services. We've been working very closely with Aboriginal communities and Aboriginal organizations to make sure that we're able to reach out to victims to give them the information. What is key going forward is having victims become registered.
Now, we also know that some victims do not want to be made aware of anything and don't want to register, and we fully understand that, but for anyone that wants to, we're making sure that our network is extending right down to the municipal level and also making sure that people can access that information in various ways and in various languages.
Just to give you an example, on our website, there is a section where people can go to find out about victims' services, how to register and whom to contact. In our engagements with Aboriginal communities, we've made our information available in 16 different Aboriginal languages so that people can understand what's available to them and what they can access going forward. We are going to continue to look at how we expand those networks and work with various organizations.
We also have victim advisory committees in place which comprise various victim support groups across the country. Through their networks, we are able to reach out to make sure that every victim that has an interest and wants to become registered can and can access all the information that they're entitled to under the bill.
[Translation]
Mr. Clair: The Parole Board of Canada and Correctional Service Canada share a registration service. There are approximately 7,800 victims who are registered and the service is the same across Canada. We have professionals in each region — there are 24 — who communicate directly with victims who want to be contacted. We provide exactly the same service. Furthermore, we are using new technologies, such as YouTube, to explain to victims how things work, what they can expect and what kind of statements they can prepare. We accompany them in the institutions, and we provide them with support, advice and the information they need. It is a pan-Canadian service.
Kathy Thompson, Assistant Deputy Minister, Community Safety & Countering Crime Branch, Public Safety Canada: You might be wondering how victims will know who to ask and how. At Public Safety Canada, in the public safety portfolio, there is a National Office for Victims. We are responsible for co-ordination for the portfolio, and we help distribute and make available the information.
Like Correctional Service Canada, we provide information in 18 different languages, including five aboriginal languages. When victims don't know what to do, the public safety portfolio is involved in and supports co-ordination, and we put them in contact with the right people to ensure follow-up.
[English]
Senator McIntyre: Bill C-32 has 60 clauses. Some make minor amendments of a technical nature, such as changes or reformulations designed to clarify the legislative intent. On the other hand, there are substantive changes in the bill. I know that the bill replaces the word "person" in the definition of "victim" with the word "individual," and I was wondering about the reasoning behind this change. Is it because it restricts the definition to individuals, thereby ruling out the possibility that a corporation could be considered a victim?
Ms. Arnott: Thank you for the question, senator. That distinction was made quite deliberately. In regards to the definition of "victim" which is in the bill of rights portion, we have intended that the use of that term is as large as possible. We did make a deliberate decision, though, when we were drafting the definition for the Criminal Code and for the CCRA, as to whether corporations should be entitled to have the rights of a victim in regard to measures in the Criminal Code and measures in the CCRA. It was our view that right now corporations have been able to use some of the provisions that are available to victims in the Criminal Code, and we didn't want to make a change there.
As an example, we've seen a municipality being able to give a victim impact statement in the case law, and we didn't want to make that change. The Criminal Code definition of "victim" retains the largest sense of the word "person." On the CCRA side, though, particularly thinking about the balance between information that can be given about an offender, the view was that we wanted that to be information that went to individuals. So if it was information about an offender it could go to an individual, but not to a municipality. It was a deliberate decision there.
Senator Fraser: All these are familiar faces; it's nice to see everybody. I'm starting on my learning curve on this bill. There are things that I have to think about. Maybe we have to have them back at the end of proceedings, chair. For example, I want to think about production of records in sexual offence cases. For right now, I have really simple questions betraying my fundamental ignorance of the law. You'll bear with me.
In the matter of the definition of a victim, in section 2 and in the CCRA as well, it strikes me as a really broad category. It doesn't even say you have to have suffered directly. You could have suffered psychological harm because your hockey coach had problems and he couldn't come and coach you and so your team didn't win the cup. In particular, I wonder about that breadth when the harm or damage or loss is suffered as the result of the commission or alleged commission of an offence.
I understand that you don't want victims to have to wait until conviction. That's really, really important. Everybody would support that. I still wonder about the inclusion of that word "alleged" and whether there is jurisprudence to establish how far that can stretch. I guess what I'm saying here is that I hope we're not setting up a situation where just anybody who has an axe to grind can come along and say, "I'm sure that my neighbour is responsible for something or other and I claim status as a victim." I have one other question after that.
Ms. Arnott: Okay. I'll try to be brief. As I mentioned earlier, what we're trying to do in this definition is to bring together five definitions. One in the Criminal Code says a victim includes the victim of an alleged offence. The only purpose of that existing definition is to include that idea of "alleged." It's for the reasons that you explained, namely that you don't want any right of a victim to be only after there has been a conviction.
What we have provided, though, in the proposed definition is that there does have to be the link with an offence. We're trying to find that balance that you do have to have causality and a link between the person claiming the rights of the victim and criminal conduct because that's the sphere that we're operating in.
Does that help, senator?
Senator Fraser: I'm not sure. I'm going to have to think about that some more. I can still envisage all kinds of hypotheses, but in connection with the Criminal Code definition, it does not pose the kind of problem that I'm envisioning here, where it already exists?
Ms. Arnott: The rights that are being proposed here are in the criminal sphere, so they require the possibility a charge, the laying of a charge. What we've provided in the technical amendment is that they are dependent on a stage. I'll take the example of victim impact statements. We're proposing that the victim impact statement indicate clearly that the statement has to relate to the charges for which the offender has been convicted. If the offender was charged with 10 things and convicted only on two, the victim impact statement is in relation to those two, not to what the neighbour thinks someone may have done.
Senator Fraser: That is helpful. Sections 9, 10 and 11, which are about protection, say that every victim has the right to have security, reasonable and necessary measures to protect from intimidation and retaliation and privacy considered. All these things are to be done by the appropriate authorities. Again, maybe I'm just by nature suspicious, but I wonder why you didn't get a little more specific about who the appropriate authorities are. In an era of budget cuts, I can see the police saying, "That's not my job. That's the court's job or the Crown's job." Is it not possible to be a bit more specific about who actually should be doing these things to help the victims?
Ms. Arnott: We absolutely thought about that, senator. The context that we're operating in is that all provinces and territories have victim legislation, and a number of those provincial and territorial statutes lay out with specificity who is responsible for what. So we had to design a statute that would meld with that existing legislative framework. That was one of the considerations we had. That phrase "appropriate authorities" is already found in the criminal law, so that was a reference point for us, that there is already an understanding in the system about what that phrase means. It is not a novel concept, so, if it gets to a court having to interpret, they will have a body of law that they can draw on.
Senator Fraser: I told you; my questions were based on ignorance.
The Chair: I've got two senators left on the list; we will try to get both questions in.
Senator Batters: There has been some legalistic type of talk today that kind of reminded me that maybe some people who are paying attention to this aren't sure what a few of these words mean. First of all, isn't pecuniary damages basically a way of saying easier-to-calculate types of damages? That would be how I would put it to people who aren't sure what that means. Isn't the major purpose of the restitution order and this pecuniary damages element of this bill to make it a much simpler process for victims to enforce and collect some of the smaller amounts that would otherwise not be financial feasible for victims to collect by hiring a lawyer and going through a really expensive, lengthy legal process, a civil suit?
Ms. Arnott: I think you're right. There's an important distinction in the law between restitution and compensation. The bill deals with restitution. Restitution is part of an appropriate sentence. It is an order that is made against the offender, so it's the offender who has to pay it. As we've already talked about, it's for certain enumerated things that are set out in the law. It's not for future losses. It's not for things that are not ascertainable, and that's the word that's used in the code. As you've said, it's things that can be easily quantified. What we're trying to do in this bill is to make it easier for Canadians, for victims of crime, to understand what ascertainable means. We'll be doing that through public information provisions.
Senator Batters: Could you just give a few examples of the type of pecuniary damages that could be included, just a few examples?
Ms. Arnott: If your identity was stolen and you had to get a new passport, that is a very specific, identifiable cost that you could claim as part of having your identity stolen.
Senator Joyal: My question is for Ms. Arnott or Ms. Morency. In relation to section 25 of the bill, subsection 2 especially, if I understand the concept of the philosophy of this bill, there are rights stated, but, when it comes to the implementation, it's left to an administrative procedure of complaints, if it exists. When an agency, like the one of Mr. Head or Mr. Clair, has a complaint mechanism, a victim can address himself or herself to that mechanism. The bill provides that, if there is no such mechanism with a department or an agency, one will be established. The bill provides for that, but what puzzles me is that when the victim is not satisfied with the answer that she or he receives from the complaint mechanism of Mr. Head or Mr. Clair, he or she can appeal to the jurisdiction that can review the complaint. But, for the department or the agency that doesn't have a complaint mechanism and will have to establish one, there won't be any review if the person is not satisfied with the answer. In other words, there will be two kinds of protection of the rights of victims. One is assured by the system that exists presently, but, in the new system, for those who don't have it, they won't have the capacity to appeal. I don't understand why there will be two ways of treating a victim, depending on whether the complaint mechanisms exists now with a review process or whether there is no complaint mechanism. Why make that discrepancy in the bill?
Ms. Arnott: Senator, there will not be two approaches. The departments and agencies that are subject to this bill will be required to have a complaint mechanism, and, as you've indicated, the bill sets out what that complaint mechanism has to include, an ability to receive complaints, an ability to review complaints and a requirement to report back to the victim.
Senator Joyal: That is not what subsection 2 states. Subsection 2 of 25 says: ". . . may file a complaint with any authority that has jurisdiction to review complaints . . . " But it doesn't mean that, in subsection 3, when you establish a complaint mechanism, there will be a review component in relation to that department. It's not clear. It's not well stated that, according to subsection 3, the victim will have the same right when there is no such complaint mechanism. Unless you call upon the general power of surveillance of the Federal Court over the administrative body of the federal government, the general power of review.
Ms. Arnott: I understand. The intent with section 25 is that the first step for a victim is to complain to the department or agency that they feel has breached their right. That's section 1. Section 2 provides that, once a victim has gone through that process, if they're unsatisfied — and it is a subjective analysis of the victim — they can go further, and that going further could be to the federal ombudsman, who has right now in her mandate an ability to review the Correctional Service and the Parole Board. It could be to other authorities, such as the RCMP Public Complaints Commission. It could be to a provincial law society. It depends on who the actor is that has breached the victim's right.
The Chair: I am sure this discussion could go on for some time, but we have gone beyond our time. I want to thank all of you witnesses for your appearance here today and your contribution to our deliberations. Thank you.
Members, we will rejoin this conversation tomorrow morning as we continue our deliberations. Meeting adjourned.
(The committee adjourned.)