Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 28, Evidence - April 1, 2015
OTTAWA, Wednesday, April 1, 2015
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 4:45 p.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Before we begin, I just want to indicate, unless I hear strenuous objections, that I would like to extend the meeting by a half an hour to accommodate the witnesses who have very generously given us their time today. I know some of you may have to leave to attend other meetings or meet other commitments, but I hope the majority of members will be able to hear testimony throughout the hearing process.
Thank you all for being here. 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 continue 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 a federal bill of rights for victims of crime, the Canadian victims bill of rights, or CVBR. 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. This is our third meeting on the bill.
As a reminder to those watching, these committee hearings are open to the public and also available via webcast on the parl.gc.ca website. You can find more information on the schedule of witnesses under the same website, under the icon "Senate Committees."
For our first panel today, please welcome, from the Canadian Parents of Murdered Children and Survivors of Homicide Victims, Yvonne Lindfield, Co-founder, Manager, Education and Community Outreach; as individuals, Mona Lee and Dale Sutherland; and Victimes d'agressions sexuelles au masculin, Alain Fortier, President, and Frank Tremblay, Vice-president.
I remind all of you that five minutes have been allocated for your opening statements, and then we will move on to questions from members of the committee.
Ms. Lindfield, can you begin?
Yvonne Lindfield, Co-founder, Manager, Education and Community Outreach, Canadian Parents of Murdered Children and Survivors of Homicide Victims: Good afternoon, Mr. Chairman and honourable members and ladies and gentlemen. I thank you very much for the opportunity to address the committee on this historic piece of legislation.
My name is Yvonne Harvey Lindfield. As you mentioned, I'm the co-founder of Canadian Parents of Murdered Children. My work involves a specific group of people who have become co-victims or, as is commonly referred to, "survivors of victims of homicide." I speak to you today on behalf of those parents whose child or children were murdered, as well as other family members who have lost a loved one to homicide.
It is impossible to expect anyone who has not been directly impacted by the act of murder to understand the enormous grief, the depth of hopelessness, that those of us feel who have experienced such a life-changing traumatic event.
In homicide, the primary victim is dead. However, what we can do is we can give the living victims a voice, to be acknowledged and considered as having been directly impacted as a result of the crime.
An effective and fair criminal justice system is the basis of a civilized and prosperous society. Therefore, our government has a responsibility to rebalance the criminal justice system by considering the immense impact that criminal acts have on victims, physically, mentally, economically and socially, if you will, to provide a more humane approach to how victims of crime are treated and supported. Only when such a framework exists will equality be achieved.
Bill C-32 is a significant and greatly welcomed piece of legislation that will create a major and positive shift in the criminal justice culture for the very first time in Canada's history.
Although every province and territory has legislation addressing victims' rights and services, they vary greatly from one jurisdiction to another. Therefore, we must strongly encourage engagement of all jurisdictions to revisit their current legislation and parallel it with the federal government's victims bill of rights.
Successful administration of Bill C-32 requires social change throughout Canada: social change that actively promotes crime victim-centred legal advocacy, training, education, public policy and resource sharing. Federal funding will provide for the implementation of these rights, as well as create greater public awareness for the programs currently available. I'm referring to the announcement in the Budget of 2014, whereby it was stated that the victims bill of rights will provide online resources, so victims can access current programs.
Nationwide training on the meaning, scope and enforceability of victims' rights, through practical skills, courses, online webinars and teleconferencing open to, but not limited to, attorneys, judges, advocates, law enforcement and policy-makers is imperative if Bill C-32 is to ensure fairness and create a seamless flow of information. This is especially important for victims of crime, who struggle to understand and to negotiate a complex and intimidating criminal justice system.
Should there be a breach of rights under Bill C-32, the efficiency of the internal complaints process to correct an infringement and to provide a resolution in a timely manner is absolutely essential in order to avoid additional harm to the victim. The fulfillment of these rights should be measured by performance indicators developed by each criminal justice agency which interacts with victims.
If victims are to secure participatory status in the criminal justice process, it will provide them with a sense of empowerment, something we lose when we become a victim of crime.
I wish to comment on the cost of implementing this new legislation and the resulting services. Currently, hundreds of millions of dollars go into the enforcement of justice and to incarcerate, educate and rehabilitate offenders, the costs of which are primarily funded by the federal government.
While education and rehabilitation of offenders, as well as crime prevention programs, are crucial to reducing crime and creating safer communities, it is equally important to provide rights, services and rehabilitation for the victims of those crimes. To help offset the cost borne by victims and their families, it's reasonable to expect some of this financial responsibility to be borne by the offenders. This, of course, falls within the provincial-territorial responsibility, one that currently leaves the services for victims wanting. Tangible support services, by way of psychological counselling or post-traumatic stress disorder treatment are vital services for those victims who have experienced horrendous crimes. Currently, if funding does exist, it is so limited that it cannot achieve an outcome of any measurable benefit.
I applaud all political parties for supporting this bill, and I appeal to all levels of government to work cooperatively to ensure Bill C-32's effective and speedy implementation.
Finally, I appeal the courts in Canada to respect this legislation.
Thank you.
The Chair: Thank you.
Dale Sutherland, as an individual: Good afternoon, senators, ladies and gentlemen. My name is Dale Robert Sutherland. As a child in Nova Scotia in the 1970s, I was sexually abused at the hands of four-time convicted pedophile Ernest Fenwick MacIntosh, beginning when I was nine years of age. In 1995, I was the first of nine victims to come forward, six of whom became complainants in two separate trials in 2010 and 2011. More than 15 years after the first charges were filed, Mr. MacIntosh was convicted of 17 counts of gross indecency and indecent assault for what he did to all of us.
He launched an appeal, which eventually went all the way to the Supreme Court of Canada. In April 2013, he was released back into the world to continue his destructive behaviour. Why? Because the courts ruled that his rights had been infringed upon because it took too long to get him to trial.
In the last couple of months, Mr. MacIntosh was again arrested, charged and convicted in Nepal for molesting a young disabled boy. He is currently serving a seven-year sentence in a Kathmandu prison. At the time of his conviction, he was also made to pay immediate restitution to the boy and his family. Third World Nepal took all of 49 days to accomplish what Canada couldn't do in more than 18 years. The shortcomings of the Canadian system resulted in this serial pedophile being released back into society.
Our ordeal continues. I have just come from Nova Scotia, where we succeeded in our efforts to have the provincial government amend the Limitation of Actions Act to allow for all victims of sexual abuse, both past and present, to sue their perpetrators.
The re-victimization we experienced throughout this lengthy legal process has now lasted more than 20 years. It has taken a tremendous toll on all of us and our families. This two-decade long journey has destroyed marriages and damaged other relationships. Additionally, it has plagued us with both physical and psychological health issues. Some victims have turned to drugs and alcohol to try to cope. Others have chosen to end their lives rather than to live with the pain.
I'm honoured to be here today to speak about the new victims bill of rights, Bill C-32. This new bill will help to ensure that future victims will not have to endure the type of ordeal that my fellow survivors and I did.
I would like to highlight five components of this new bill that would have made a substantial difference in our experience had it been in existence at the time of our legal ordeal: one, the right to information about the status of the investigation and the criminal proceedings; two, an improved process and guidance in the creation of a victim impact statement and the right for it to be considered; three, the right to protection from intimidation and retaliation; four, the right to convey one's views about the decisions made by authorities and to have those views considered; and five, the right to have the courts consider making, in all cases, a restitution order against the offender.
In closing, I would like to read aloud the names of my five fellow survivors who have accompanied me in this journey: Alvin MacInnis, Weldon Reynolds, Jeffrey Hadley, Barry Sutherland, and Bob Martin.
The Chair: Thank you, sir.
Mona Lee, as an individual: Good afternoon, Mr. Chairman and members of the committee. I am privileged to be invited here today to speak on behalf of victims of crime in Canada in support of Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts. I thank you for this opportunity.
I would like to express my thanks to the government, in particular the Honourable Peter MacKay and the Honourable Steven Blaney and their staff, for all their work to get this bill to where we are today.
Victims of crime come from all races, creeds, convictions and political parties. I applaud all involved for building a foundation that we will be able to build upon to continue to acknowledge and respect our role in the criminal justice system.
By way of background for those who have not met me before, I appeared before this committee previously as a witness in support of Bill C-479, An Act to amend the Corrections and Conditional Release Act on parole issues. Thankfully, this bill was passed and will come into force in the not-so-distant future.
I unfortunately have become an expert in several of the areas which are addressed in this victims bill of rights by way of personal experience. My sister was savagely murdered in October of 1997. He pled guilty to second degree, as he covered it up to appear to be a robbery, and was sentenced to life with no parole for a minimum of 12 years. We were spared the agony of a long, drawn-out trial. However, it was not until six years later that I was able emotionally to bring myself to even find out where he was located.
Upon becoming a "registered" victim, I had first-hand experience with several issues in this bill, dealt with in the right to participation and the right to information. I am very pleased to see the inclusion of consultation with the victim before and during the trial. In my case, the offender pled guilty, so I was not involved at that stage, but it is so important to be able to present your views, especially by way of a victim impact statement.
One enhancement that should be made, though, is the assurance that the statements that are submitted and approved in a timely manner are able to be read as written. I know of cases where these statements have been censored and redacted mere minutes before presentation, even though they had been submitted a month before. How devastating is this for a victim, I ask you?
My experience with victim impact statements in the parole system has been less than ideal. Over the period from 2007 to the present time, I have had to endure six parole hearings and prepare six victim impact statements. It is a gut- wrenching experience to relive the crime each time you do one of these.
As I had never seen my sister's killer, I chose not to attend the hearing in Western Canada in person. I chose to do my statements by first audio and then videotape. I encountered many frustrating events with these hearings, including the Parole Board not being prepared with the right equipment and cutting my tape off in mid-sentence, as I had inadvertently forgotten to copy part of my statement and he hadn't seen it.
I would ask that you consider future amendments to allow video or teleconferencing of parole hearings for those victims who either cannot attend or are not emotionally able to attend in person. It is allowed for witnesses at trial in certain cases, so please extend it to parole hearings as well.
All we currently get is a sanitized report from the hearing with relevant facts about the accused removed. We need that information, ladies and gentlemen, and the section of the bill that includes giving us an audiotape is a step in the right direction.
I would also like to ask that, in future, victims' family members are allowed to show a picture of the victim in the course of their statement at a parole hearing. You have made this available to victims during trial, so please do not let the memory of the victim be forgotten during these parole hearings. No matter how long it has been, we have still lost a loved one, and it is about respect for them, not just about the rights of the criminal.
I would like to thank you for allowing victims to receive a current photograph of the criminal prior to release from the institution. I was denied this right back in 2010 when he was released, and he could have showed up at my door and I would not have known who he was.
Being involved in the criminal justice system as a victim is beyond most people's comprehension and very overwhelming. I would hope that victims' organizations, such as the amazing Sue O'Sullivan and her ombudsman's office and other victims' rights groups, plan active campaigns to reach out to those victims who choose to be involved, to let them know how far we have come in getting the respect and sense of inclusion that we deserve.
But we must not stop here, ladies and gentlemen. There is still a lot of work to be done to allow the voices of victims in Canada to be heard loud and clear.
Thank you.
The Chair: Thank you.
[Translation]
Alain Fortier, President, Victimes d'agressions sexuelles au masculin (VASAM): Thank you for giving me the opportunity to appear here today. My name is Alain Fortier, and I am the president of VASAM. I am accompanied today by Frank Tremblay, the vice-president. To stay within the five-minute time limit, I will begin the presentation, and Mr. Tremblay will wrap up.
We support Bill C-32 for a number of reasons, including the right to obtain information and the right to security, especially during the victim's testimony.
I was sexually assaulted several times by two different attackers. In the case of my first attacker, I lived through the hell of the criminal proceedings that lasted more than five years. I had very little information about the status of the investigation, how the legal proceedings were going, the role that I could play and the services provided to victims.
Besides that, what was the most difficult for the small, 13-year-old boy that I was at the time was testifying for several hours under the murderous gaze of my attacker. I found that experience so terrible that I did not report my second attacker. I did not want to go through that nightmare again. However, because of my inaction, there was at least one other victim after me. I will never be able to forgive myself for that.
The question that has haunted me since I learned about Bill C-32 is this: would I have reported my second attacker if Bill C-32 had existed at the time? The answer is yes. Thank you.
Frank Tremblay, Vice-President, Victimes d'agressions sexuelles au masculin (VASAM): Good afternoon, everyone. Thank you for having us here. I, too, am a victim. I was sexually assaulted about 80 times when I was 13 years old. I reported my attacker at the criminal level, and also at the civil level, where I sued him and his organization.
There are two points that I would like to bring to your attention. First, the restitution order. This simple principle is already stated both in the current civil code in Quebec and in common law in Canada. Under this principle, when something is broken, it must be repaired. Remember one thing: when you break something, there is only one way to repair it, which is to pay up. Allowing a victim to obtain financial compensation aimed at making up for the losses related to physical and, very often, psychological suffering, for example in sexual assault cases, will give that victim a true sense of restitution.
Regardless the amount, it will enable victims to pay for psychological care, for example. After going through court proceedings, it is often impossible for a victim to have an even greater amount of energy to seek restitution through civil proceedings. Enabling that same victim to seek this kind of compensation through information and evidence that has already been brought before a judge will truly help, regardless of the amount.
It would also be one more thing for attackers, which will enable them to demonstrate their goodwill during parole hearings, by verifying whether they have repaid the amount set out in the restitution order or have started to repay it.
The second important point concerns the spouse's obligation to testify. Spouses are compelled to testify in the context of sexual offences and crimes against children. The bill will enable us to extend this provision to cases of impaired driving and child pornography. We know that, currently, when a sexual offence is involved, there has often been a steady rise in the seriousness of the offences committed by the attacker. Child pornography is the gateway for these attackers. Requiring a spouse to testify will give us access to the attacker's first steps toward sexual offences. Let us not deprive ourselves of that.
To conclude, Bill C-32 and the many amendments it proposes will make it possible to align our current legislation and to represent the clear desire of Canadians to have a justice system in the true sense of the word. Thank you very much.
[English]
The Chair: Thank you all. We will begin questions with the deputy chair of the committee, Senator Baker.
Senator Baker: Thank you to the witnesses for your very excellent presentations. You gave the committee information that it will use in assessing the bill.
Let me start by saying I'm somewhat shocked that there is no provision in the bill, as Ms. Lee pointed out, for victims to have available to them video teleconferencing during parole hearings. I have heard you mention this before, and you give a very compelling case for it. I'm sure that you gave it to the federal government when they were soliciting information concerning this bill.
Is there any particular reason you've been given for it not being included? Is it too expensive? I can't imagine that it would be expensive.
Ms. Lee: Actually, I was not involved in the discussion of this bill. I was involved in Bill C-479. I've been told that it is available, I believe, in Quebec currently, so they're hoping it will be extended to other provinces as well. I think it would be great. As a witness now, in certain cases, you're allowed to attend by video conference at the trial.
Senator Baker: It's in the code.
Ms. Lee: I think it's only logical.
Senator Baker: Mr. Tremblay, you make an interesting point about the restitution order. In the definition of "victim" under this bill, it takes into account psychological damage. In the restitution portion of this bill, psychological damage, or as you point out, counselling that someone would need after the fact, after a trial, is not accounted for in the restitution order under this bill. As you point out, in civil law in Quebec, there is an entire proceeding whereby you have what we call in English the general damages, which would be loss of enjoyment of life. Pain and suffering and all of this is taken into account.
As to how you would do that in a criminal trial, you've suggested that that should be a part of the evidence, if I interpreted you correctly. In other words, victims would be represented as interveners, or whatever, in order to present the evidence to the judge so that at the end of the trial the judge could make a quantitative judgment on the psychological damage, as much as you can put a monetary figure on the damage and pain and suffering that somebody has experienced.
That's not in the bill, but you're suggesting this would be a good thing that could be in the bill, and people shouldn't interpret restitution under this bill as being restitution for psychological and that sort of damage. Am I correct in what you're saying?
[Translation]
Mr. Tremblay: If I may, my understanding of Bill C-32 is this. When I talk about evidence, it includes two components, which I had full experience with. There is the criminal side and the civil side.
Many people do not have the psychological or financial ability to afford themselves the luxury of seeking restitution. What I mean by restitution is that, as someone who was assaulted as a child, I think that the boundaries of childhood have been breached, boundaries that should never have been crossed. If I go to your house and I break your fence, I will have to pay for it. If I say that I will pray for you and that I apologize, you will say that it is fine. However, someone will come and repair the fence the next week, and you will have to pay.
If I do not have this luxury, things will be different. I use the word "luxury" because I went through civil proceedings, and it was very expensive financially for me to do so, before being heard in criminal court, which is very demanding.
Of course, all the evidence and damages had not all been presented in the criminal proceedings. However, a lot of the victim's suffering has already been presented before the judge in a criminal trial. These elements exist.
Someone who cannot launch civil proceedings will at least have brought these elements before a court of justice, and those elements will be considered when the judge issues a restitution order, by saying that it has been noted that mister —
[English]
The Chair: I have to interrupt and remind our witnesses that we have a tight timeline here.
[Translation]
Senator Boisvenu: Thank you very much for your very heartfelt and moving testimonies. Thank you, too, for your courage. It is very difficult and takes a lot of courage to speak about events in our past that we would like to keep buried. So, Yvonne, Dale, Mona, Alain and Frank, thank you very much.
The victims bill of rights is a door that we open in an unfinished building for the victims of crime. At the same time, when the Canadian Charter of Rights and Freedoms was created, it was a door that we opened to guarantee rights to criminals in the judicial process.
The bill is not an end in itself. Once it is adopted, it will be a starting point, and we will begin working on victims' rights. The decisions of courts and administrations will ensure that the rights will evolve over time.
The victims bill of rights will include a complaints process. As a victim, how would you like this process to be administered, in order to make life easier for victims when they file a complaint and to avoid adding to their burden? How should these complaints be handled in the system to ensure that, as complaints arise, victims' rights will take shape and evolve? My question is for all of you.
[English]
Ms. Lindfield: As I mentioned, when there is a breach of rights under Bill C-32, we have to have a very effective internal complaints process, and it has to have some oversight. We have to have performance indicators. What I would really like to see is an impartial ombudsman that monitors what's happening. As you say, there are going to be so many challenges through the courts, and that's a real concern because we're already seeing challenges in some of the legislation that's already passed. That's unfortunate because instead of helping victims, it has now hindered victims.
It has to be a process that will expedite things, and of course that's something that's going to have to be drafted. What you're doing is putting that victim through tremendous pain and anguish again because they just feel that the system has failed them. When they see the victims bill of rights, they think, "Okay, I have an avenue of recourse," and hopefully it will be performance indicators that will be effective and thorough.
Mr. Sutherland: When I look back, when I first gave my statements about what happened to me as a child, I would say that I really wasn't believed or wasn't taken very seriously — very poorly trained police officers and everyone involved. They obviously need a lot better training. I'm not sure if it was because I was a man, and sexual assault on a man wasn't considered a big deal, or what it was, but I was treated like it was not that big of a deal. I guess that's all I can say. I don't know what we do to change that general attitude. I think that was the main reason why it took so long in my case, and eventually Mr. MacIntosh got off because it simply took too long. I don't really know how to change that.
I generally don't believe that our society cares that much about sexual assault, particularly with men maybe. I don't mean to be mean to women, or whatever, but it's like we're supposed to be guys and we can handle that and it's no big of a deal. I don't know how we are going to change that attitude.
Ms. Lee: The thing with the victims bill of rights is that it's a very large bill with a lot of different components. It's going to be a challenge to find the right way to enforce all these different components.
My complaints were mostly with the Parole Board, but then there is the trial component, the restitution. Whether it's, as Yvonne said, through some type of ombudsman's office — Sue O'Sullivan is amazing, but she's very busy. Whether she herself has the time to deal with all these different components, because there will be a lot of complaints — and if it's going to be effective, you will want the complaints. They're not going to want them, but they're going to come. Maybe there can be a different person in charge of each of the aspects of the bill and then they report in to someone else.
[Translation]
Mr. Fortier: To conclude, Bill C-32 enables victims to feel that they are involved in the legal system. What is important is that the process is simple and efficient. I think it will be simpler for an independent person to receive the complaints. Victims should not feel like they have to fight to make a complaint.
[English]
Senator Jaffer: Thank you for your presentations. Listening to all of you, even if it's been so long, it can sort of feel as if it happened yesterday, so it takes a lot of courage for you to be here.
Ms. Lee, you said this is a very big piece of legislation. I know that a lot of this has to be administered by the provinces, and each province is different. When I was very much involved in this issue, one of the things I always dreamt of is that the minute something happens, the offender gets a lawyer. I always felt that if there was a Minneapolis model, where the advocate walks in at the same time as the police do, to help the victim through all the different things. I wanted to hear from all of you, or some of you, as to if you had somebody there with you to guide you through some of this, would it help in the healing?
I'll start with you, Ms. Lee.
Ms. Lee: I was very fortunate that a victims' rights group in the province where the hearing was located was able to go to the hearing for me, and they were great. These are people who have experienced this in their own families, and they were very supportive. But I had to go look for it. It wasn't offered to me. I had to, as I say, become a registered victim.
That's why I would advocate for the ombudsman's office or other groups to actively reach out to people. I think most people don't know what their rights are, and this is so much better than it was. I think it's going in the right direction.
Mr. Sutherland: Correct me if I am wrong. You were wondering about what process to help in the healing?
Senator Jaffer: Not just the healing, but you feel like you're left alone. Once you've made the complaint, you're wondering what is happening. No one is there to explain to you patiently as to what's happening, and I'm wondering if that would help.
Mr. Sutherland: Yes. That's one of the points: the right to information on the case. I made hundreds of telephone calls and wrote hundreds of letters and emails looking for information, and I myself was gathering information that the police weren't able to obtain.
Again, I don't know what we're going to do. Listen to the victims. Very poorly trained people.
I'm still going through the process. Mr. MacIntosh was just put in jail, so I'm dumbfounded by what we've done with this guy. Victims aren't listened to. They're not. That's all I can say.
Ms. Lindfield: My case is a little bit different. My daughter was murdered in St. John's, Newfoundland, and I was a resident of Ontario. I wasn't entitled to any victims' services or guidance here because the murder didn't happen in Ontario. I wasn't entitled to any guidance or assistance in Newfoundland because I wasn't a resident in Newfoundland. I'm one of those people who fell through the gap.
I'm glad you brought that up the provincial responsibilities, because there shouldn't be any difference in the provinces. We have imaginary provincial lines that break up the country, but whatever service is available here to Ontario residents should have been available to me, regardless of the fact of where the murder was committed.
What I will say — and I would like to give accolades to the Crown prosecutor in the case, who was Elaine Reid. She prosecuted the case and she kept me informed. That was very important, because I know a lot of people are not.
It's been eight years. We didn't get a conviction because the local police, the RNC, Royal Newfoundland Constabulary, within the first half-hour of interviewing the accused, stepped over the line and started interrogating without reading him his rights. They read him his rights. His lawyer told him not to say anything else, and these two police investigators continued to do so. So we were for eight years sitting on the fence. I just found out in February that the Court of Appeal in Newfoundland has upheld the judge at the Supreme Court.
So he's walking away. He has a house that's all paid for. He has my daughter's life insurance. I always thought you couldn't profit from a murder, but I guess the Charter of Rights has protected him.
What I'd like to see is the same services. We have a basic care plan that is universal across the country. That's what I'm concerned about: whether or not this new legislation and new guidelines are going to be implemented universally across the country.
Senator McIntyre: Thank you all for your presentations.
[Translation]
Mr. Tremblay, Mr. Fortier and Mr. Sutherland, in your presentations, you mentioned that you had been sexually assaulted several times. After these assaults, one or more charges were laid against one or more attackers. Once the charges were laid, you had to appear in court several times.
Having said that, I would like to discuss with you the idea of the right to a reasonable time frame. As you know, court proceedings may last several years. The defence lawyers often request adjournments, which is discouraging for victims. I understand that victims would like to turn the page, forget all of it, but it is impossible because they constantly have to appear in court.
Do you see the need for the court to impose reasonable time frames for a trial? If so, what would a reasonable time frame be? Six months? One year? Two years?
Mr. Fortier: A reasonable time frame would be significant progress. As for the courts, a distinction should always be made between crimes against property and crimes against the person. With crimes against the person, it is difficult to get through it without forgetting any of the story; otherwise, we will pay dearly in court. A reasonable time frame of two years would make things easier for victims and would avoid their being discouraged.
Victims often receive a notice to appear from a bailiff one week in advance. They prepare to appear in court, then it is postponed. Victims constantly relive the crime against them. I think it would be a good step forward.
[English]
Mr. Sutherland: In my case, I went forward in 1995 and it took 12 and a half years to arrest Mr. MacIntosh. Then he was brought back in 2007, and I didn't go to my first court appearance until mid-2010. Yes, that would have been nice, one less year or so. You would think, after waiting 12 and a half years, the court process would have been a little bit quicker. Like I said, it's still going.
Yes, it would be nice if there was some kind of time limit. Perhaps even the three extra years that it took to go to trial would have made the difference when the Supreme Court of Canada said that Mr. MacIntosh's rights were infringed upon because it took too long. Maybe that had a major part to play in that as well. So I agree with that, for sure.
Senator Joyal: Welcome all of you.
First to Ms. Lindfield, I was very moved by the conclusion of your brief: "I appeal to the courts in Canada to respect this legislation." The word "respect" is underlined.
You have referred to the Canadian Charter of Rights and Freedoms repeatedly, stating that it protects the criminals. You know very well that the Canadian Charter of Rights and Freedoms contains subsection 24(1), entitled "Enforcement." I will read it:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
My concern with this bill is that the victims won't be protected. As you said, the criminals are protected by the Charter because there is no similar provision in this bill to section 24 of the Charter, especially when you read section 28 of the proposed veterans bill of rights. It specifically excludes a real remedy. It states:
No cause of action or right to damages arises from an infringement or denial of a right under this Act.
As much as I support the substance of the rights established in this bill, I am concerned that it doesn't carry the teeth that you expect it will in order to have the rights of the victim protected, especially when I read your conclusion: "I appeal to the courts in Canada to respect this legislation." The courts are excluded by proposed section 28.
It seems to me that if we want to be logical, if we want to be effective, if we want to have the restitution order that you expect, the court should be involved in protecting the victims other than by section 24, which you claim protects the criminals.
How do you see the challenge we have to face here?
Ms. Lindfield: Of course, it's a huge challenge, but what I am saying right now is that victim bill of rights is a beginning, and we can grow from that.
We all know that the Charter trumps everything. When I refer to the courts respecting the legislation, I think back. I testified on Bill C-37, I believe it was, making offenders more accountable. We increased the victim crime surcharge, which is still ridiculously low, and we took away the discretionary right of the judges. That has backfired on us because now they're not applying this, and they're using it as a constitutional challenge. That's because the discretionary rights were taken away. Maybe that would not have happened if they had done their job in the first place.
I don't have my notes with me, but I use an example in New Brunswick where they looked at the victim crime surcharge being waived. Part of the judge's responsibility was to have proof in the court that this person was not able to pay the victim crime surcharge. In 99 per cent of the cases that were surveyed, it was not part of the court record, so the judge just waived it and it was not collected.
I guess, yes, taking away the discretionary power of judges is a big step, but it's the only way you are going to collect the victim crime surcharge and that money goes to help victims. That's why we don't have psychological, PTSD services, and it's crucial to people who have been abused and people who have lost family members. We need that. We're trying to do the best to get on with our lives, but unless you've experienced it, you don't understand it.
The Chair: We're going to stop at that point. We have less than 15 minutes left and four senators remain on the list. All of you will hopefully keep that in mind.
Senator Batters: Thank you very much to all of you for being here today. I want to start with Mr. Sutherland.
You said in your opening statement that you were honoured to be here, and I want to tell you on behalf of the Senate of Canada we are honoured to have you here today. Thank you for sharing your story with us.
You have endured an unbearably long and painful ordeal in trying to bring your case to justice. I'm wondering if you could tell us how it might have been helpful to you to have better access to information about the offender in your particular case along the way. What would that have meant to you?
Mr. Sutherland: I guess it would have meant that my case mattered. That would have been the big thing. I felt as if I was treated like it wasn't any big deal. I'm sorry for repeating that, but that's just how I felt through the whole process. It wasn't until the tail end of things, the last few years, that people started taking it seriously.
I tried to obtain the information myself and I would keep calling people and asking and asking. There was word going around that Mr. MacIntosh was coming back and forth into Canada. People were phoning me and telling me this. I was phoning the police; I was phoning members of Parliament; I was phoning whoever I could to tell them, "Would somebody please do something?" I even found out where he was, and the police — maybe because they thought they were police officers — just didn't take me seriously. All along I knew what I was talking about.
On the aspect of the right to information and the right to convey one's views, if they're pushed into a corner and I have that right, maybe it will make them do their job a bit better. That's what caught my eye, instead of just treating you like you're a person out there and "I'm a police officer" or "I'm a member of Parliament." There were a couple of public servants who treated me with respect, but the large majority did not.
I think having something, having the real rights and pushing these people to make them do their jobs properly would make a big difference, yes.
[Translation]
Senator Hervieux-Payette: First, I apologize for being late. I was at a committee meeting where I am the deputy chair, and so I had to hurry things along. This committee is very important to me.
Mr. Sutherland, and probably most of you, mentioned the issue of time frames before the courts. Time frames in general in Canada are not really my area of knowledge, whether it involves the court of first instance or of second instance. However, I can tell you that I often hear that there is a shortage of judges in Quebec. In general, the delays are not because of the legal problems. Rather, they are related to the fact that there aren't any judges to hear the cases.
Do you think this is a general problem? Basically, in order to be heard, you need to have a room and a judge who has the competence in that area.
Mr. Tremblay: In terms of time frames, I have seen the testimonies of hundreds of victims. In my class action, there were at least 110 individuals who had been assaulted. I have seen very long and difficult time frames for several individuals. In the case of my attacker, the trial lasted three and a half years. I am thinking about Jean-Claude Bergeron, who has not been sentenced yet and has not been found guilty. He was arrested in August 2010. The verdict in his case will be given on June 4, 2015. That is five years.
In therapy, we deliberately did not erase my memory. I worked with the EMDR — or Eye Movement Desensitization and Reprocessing — method to clean up. This method is extraordinary. I have seen incredible things happen with this method, and the memory can be erased.
However, we cannot erase the memory of someone when we know that the individual will have to testify. These delays are extremely troubling for many victims. It is what prevents them from going before the courts. Alain spoke about it a little earlier, and it is what prevented him from reporting his second attacker.
Senator Hervieux-Payette: In cases in which the victims' rights are acknowledged, to resolve the issue objectively and efficiently, do you think it is logical, once we have resolved the time frames before the courts, to provide victims with restitution and services, which vary from province to province? And do you think that the budgets required for these services, both the restitution to victims and the services offered, have been provided for? Is there federal-provincial collaboration?
Mr. Fortier: First of all, with respect to time frames, it is not necessarily the judges; often the attackers postpone the time frames to draw out the proceedings.
In terms of the treatment provided in Quebec, the crime victims' assistance centre, or CAVAC, provides services, but I know it varies from province to province. Would it be a good idea to standardize the services? Yes, it would be a good thing so that, no matter where you are in the province, you have the right to treatment.
Senator Hervieux-Payette: And restitution?
Mr. Fortier: The same thing for restitution.
[English]
Senator McInnis: On that very point, that was going to be my question. We're hearing quite a bit about the length of the trial running from three to seven years and increasing. What suggestions do you have with respect to that?
My second point, Mr. Tremblay, is that you do know that clause 15 of the bill amends section 486.2 of the Criminal Code with respect to testifying; you can do it outside the court, testimonial aids, behind the screen and so on. I just want to put that on the record, because I understand you thought that was not there.
Mr. Tremblay: Are you able to repeat that?
Senator McInnis: Clause 15 of the bill provides an avenue for you to have testimonial aids, to be behind the screen, to be outside the courtroom. This is just for clarification, to put it on the record.
But the other point, with respect to the length: Are there any ideas? It's not a matter of throwing money at it. Senator Hervieux-Payette says a courtroom may not be available and so on. Are you suggesting that there be some form of time limit for cases such as we're dealing with here today, which, incidentally, are horrific?
Ms. Lindfield: In my case, it dragged out for eight years. The judge made a decision in the very beginning: constitutional rights were violated. So the Crown would submit another application, trying to get a piece of evidence put in. The judge would sit on that, sometimes as long as three months, and he would come back with the same decision, based on the Constitution.
The Chair: Senator McInnis asked a specific question. Do you have any suggestions in how that situation could be improved?
Ms. Lindfield: I guess there should be some reasonable time limit, with an application submitted to a judge, to come back with a response and not to take a year to respond to two applications. That's ridiculous.
The Chair: Thank you.
[Translation]
Senator Dagenais: Thank you to our witnesses. Mr. Tremblay, I am from Quebec, and I followed all of your proceedings.
I am a former police officer, and I had to appear in court regularly. Unfortunately, the victims were often accompanied by the Crown prosecutor, especially in the context of criminal charges where the prosecutor is overwhelmed, and they face a defence lawyer who is aggressive and tries to imply that the victim was somewhat complicit in what happened. Certainly, you have felt that.
How will the bill help you? I do not necessarily mean court proceedings, but how could the bill, through the victims bill of rights, help you in court?
Mr. Tremblay: I made the parallel between the Charter of Rights and Freedoms and the victims bill of rights. As soon the Charter of Rights and Freedoms came into effect, it did not solve every denial of individual freedoms of every Canadian. It has evolved, and it is in place, but it has not prevented the abuse of rights of many Canadians, even though the legislation exists.
This bill will have the same effect for me. Will it solve all the problems? I have experienced things. I do not have to explain it to you: you are a police officer, and you have seen more than I have. As an individual who has gone through major legal proceedings in a class action lawsuit — yes, I had access to the Crown, but it was difficult. Will we see a major difference after this bill is passed?
Just the fact that there are provisions that give us the right to information, the right to restitution — personally — I will go ahead and say this — I had the means to go into debt to obtain financial restitution to repair the fence of that broken child. However, a lot of people do not have those means. In my opinion, imposing restitution on the attacker will make the difference.
Let me say that the class action will finish on April 17, 2015. I know of eight individuals who would be entitled to between $75,000 and $300,000, but they will not even go to the trial, because it is so difficult to relive all of that, to document a life of suffering in writing and to meet with an arbitrator alone. Imagine how big the task may be after going through criminal proceedings and to start again in civil court where, as you know, in Quebec, once you have asked for more than $25,000, the legislator provided for out-of-court interrogation in order to free up the courts. The door is opened to having the victim completely forgotten then. If the information presented through criminal proceedings could show that there were consequences for the victim, that information will help gain restitution, in view of the attacker's resources.
I think this is a major step forward from what I experienced, where I had to seek all restitution myself, if I can put it that way.
[English]
The Chair: Thank you all for being here and for your very helpful testimony. It is very much appreciated.
For our second panel today, please welcome, from the Association of Families of Persons Assassinated or Disappeared, Nancy Roy, General Manager; from the Canadian Council of Criminal Defence Lawyers, Nana Yanful, a representative of the organization; from Walk With Me Canada, Robert Hooper, Chairperson, Board of Directors; and from the Canadian Bar Association, Kathryn Pentz, Nova Scotia Branch, Section Chair, National Criminal Justice Section; and Gaylene Schellenberg, Lawyer, Legislation and Law Reform from the Canadian Bar Association as well.
Perhaps Ms. Roy we could start with you with an opening statement.
[Translation]
Nancy Roy, General Manager, Association of Families of Persons Assassinated or Disappeared: Thank you for your invitation. I am the general manager of the Association of Families of Persons Assassinated or Disappeared, or AFPAD, which is a non-profit organization. Its main mission is to overcome the isolation to which victims' families are subjected by developing links of solidarity between them and establishing bridges towards the necessary resources. We are helping several hundred families affected by a homicide or criminal disappearance.
Since it was established almost 10 years ago, AFPAD has always advocated for the adoption of a victims bill of rights. It is clear that the official existence of this bill will give victims a voice and will create better equality between the rights of victims and the rights of criminals.
We applaud this unique initiative in Canada that isn't perfect, of course. We know that, but it is a huge step forward. It will reassure our member families and those to come, unfortunately, whose rights as families of victims have often been forgotten. This bill will recognize the right of victims to be heard, protected and, above all, considered.
The courts will have no choice but to interpret the legislation and the Criminal Code according to the rights set out in the Canadian victims bill of rights, which will give a greater place to victims and will better frame their rights.
We are reassured that victims can clearly have greater access to any information relating to the services and programs for victims, and the current information on the offender, such as photos of the offender at the time of the offender's release.
We applaud the provisions that favour the consideration and implementation of any reasonable and necessary measures to protect the identity of victims, but especially the measures established against any form of intimidation and retaliation. Our families will avoid some extremely anxious incidents in their lives.
We are aware on a daily basis of the impoverishment related to the heavy financial burden placed cruelly and unjustly on our families, which just adds to the trauma that they have to overcome.
Applying a restitution order, which we hope will be imposed by law, will bring some fairness for victims. It is important to remember the ultimate goal, which is restitution, and discretion in the legal system will have to be adapted with the sole goal of having compensation paid.
No one can blame victims for wanting to be heard and have their needs recognized, but the provinces will have to adjust and ensure that more generous and more realistic restitution programs are put in place to better respond to victims' needs. When these orders are applied, judicial reasoning will have to be taken into consideration. So if the provinces are not on board, the victims will not be able to fairly apply the rights enshrined in this bill.
The right to participation will have to be recorded in judicial reasoning, and we will have to ensure that victims are properly accompanied at every step so that undue waiting periods are not created and they do not feel rushed. Victims and their families need to be able to make the offenders, who have broken their lives, aware of the impacts that they have to live with.
This statement and bringing objects such as photos or poems will give victims greater flexibility in showing what they have lost and to be a part of the system of restorative justice or raising the awareness of the offenders and making them accountable.
Standardizing forms will also help victims have their rights and losses recognized.
On behalf of all our member families, we would like to thank you for this recognition that victims have been waiting for for so long. Thank you.
[English]
Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association: Thank you for the invitation to present the CBA's views on Bill C-32 to you today. The CBA is a national association of over 36,000 lawyers, law students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice. Our submission on Bill C-32 was prepared by our National Criminal Justice Section, representing a balance of Crown and defence counsel from across the country.
With me representing the section is Kathryn Pentz, whose day job is Chief Crown Attorney for the Cape Breton region of Nova Scotia. She will now address the substance of our submission and respond to your questions.
Kathryn Pentz, NS Branch Section Chair, National Criminal Justice Section, Canadian Bar Association: Good afternoon, Mr. Chairman and members of the committee. As front-line counsel, the CBA has considered the proposed legislation, including the amendments from the house, from a practical point of view: How will it impact the daily operations of the courts?
In 22 years as a Crown attorney, I have had a great deal of experience working with victims. Victims are an integral part of the criminal justice system. They deserve to have a voice, and the government is to be commended in bringing this bill forward.
Our comments are intended to help ensure the bill is constitutional, that it does not make promises that can't be kept, that it's fair to all participants in the system, and that it does not negatively impact on the efficiencies in court.
One of the complaints I frequently hear from victims is that the system is too slow, so we have to make sure that the implementation of Bill C-32 does not add to the delay.
The first section that I'll comment upon is proposed section 486.31(1), which allows for non-disclosure of a witness's identity. Constitutionally such a provision is quite problematic. Even if the section were interpreted as allowing disclosure to the accused but restricting its admission at trial, it is difficult to imagine how an accused could receive a fair hearing if any information that may identify the witness must be concealed. It would be impossible for the Crown to elicit evidence from a witness or for defence to challenge that information without probing into details which would reveal the witness's identity. We are opposed to the proposed amendment to create such secrecy over the witness's identity.
We also feel it's important that the legislation not create unrealistic expectations. The bill provides victims a right to the outcome of the investigation, which may be interpreted by some as giving victims a right to the information that the police have gathered. But while a case is going through the system, this cannot be done without jeopardizing a prosecution. A victim who believes that the act gives them the right to this information may end up feeling alienated and disappointed by the system if their expectations are not met.
Clause 21 of the bill deals with providing notification to victims of a guilty plea. It's true that the proposed section does not specifically direct the Crown to notify the victim prior to accepting a guilty plea, only that the court shall inquire that they have. But our concern is that this section, when read in concert with the victim's right to convey their views about decisions made and to have those views considered, will be interpreted as a duty on the Crown to advise the victim prior to accepting the plea. It is very difficult to reconcile clause 21 with the right to participate in decisions.
The reality of criminal court is that resolutions are often proposed without an opportunity to consult victims. For the system to function as it needs to, prosecutors have to be able to make agreements quickly, and sometimes this does not allow for victim notification.
Bill C-32 amends the factors to be considered by the court at sentencing by adding a requirement that the court consider the harm done to the victims, but existing section 718(f) already requires the court to consider the harm done to the victims. While it may seem harmless to repeat this consideration, we would recommend against it. Duplication could cause confusion as to the balancing of the various sentencing principles.
The amendments to section 722 in the code expand on the harms which may be included in a victim impact statement, but when we looked at the proposed form of the victim impact statement, it includes a section which asks a victim for an opinion or recommendation on sentencing, and that is not authorized by section 722. Again, the bill may suggest that victims have more control over the process than can actually be realized. The sentencing process is the judge's responsibility, and we cannot expect victims to be equipped to balance the many factors that go into sentencing.
Bill C-32 would permit community impact statements to be filed. Community impact statements can be very useful, but what constitutes a community? Who speaks for the community? We feel that in order to avoid confusion and inconsistent application, further clarification should be given.
Bill C-32 is an important step and our comments are offered to ensure it operates as effectively as possible and provides victims with accurate information as to what they can expect.
Thank you. I will be happy to respond to any questions.
Nana Yanful, Representative, Canadian Council of Criminal Defence Lawyers: Good evening, chair and honourable members of the committee. My name is Nana Yanful, and I'm delighted to have the opportunity to address you on Bill C-32 on behalf of the Canadian Council of Criminal Defence Lawyers. I will refer to our organization as the CCCDL going forward.
The CCCDL was formed in November of 1992 to offer a national perspective on criminal justice issues. Since the organization's inception, the CCCDL has intervened in important cases before the courts of this country. It has been invited by the federal government to consult on major pieces of criminal legislation and is often asked by the media to comment on current issues. Our representatives, including me, have appeared before this committee, as well as the House of Commons Standing Committees on Justice and Human Rights, and Public Safety and National Security. The current board has representatives from all 10 provinces and 3 territories.
First, I should preface my comments by saying that the CCCDL acknowledges that an effective criminal justice system requires thoughtful consideration of the interests of complainants and accused persons. Victim services programs across the country require more funding for services, not only at the front end, but at the back end for counselling, education, support and consultation.
We acknowledge that the criminal justice system can be a difficult and intimidating space for complainants, witnesses and victims, and we believe it assists the defence — it assists us — to have well-informed victims.
So while Bill C-32 attempts to address this reality, the proposed bill is far reaching and includes fundamental changes to the Criminal Code in relation to how complainants are perceived in the justice system. I would like to address three aspects of the victims bill of rights that proposes amendments to the code that are of concern to the CCCDL.
First, as one of our representatives in Yellowknife noted, conceptually complainants are now victims, even from the outset where an accused has yet to be proven guilty of the offence. The bill shifts the presumption of innocence of an accused to one of a presumption of criminality because of this change. For example, clause 18 of the bill makes an amendment to subsections 486.4(1) and 486.4(2) of the Criminal Code using the word "victim" in place of "complainant." This may be seen as overly prejudicial to an accused person. These subtle changes have an impact if individuals can be referred to in this way prior to conviction.
In regard to the definition of a victim under the bill, the CCCDL recommends that if the bill goes forward the inclusion of other types of victims must be considered. In particular, we urge the government to include family members of the alleged perpetrators, as we recognize that a significant amount of crime occurs within intimate and family relationships. Seeing the families of the alleged offenders as victims is an important consideration, given society's recognition that violence is cyclical and often those involved as accused persons within the criminal justice system have themselves been victims in the past. As such, we recommend a more nuanced understanding of the term "victim" to be adopted.
Second, as my friends from the Canadian Bar Association have said, clause 17 of the bill is problematic in terms of its relation to the Charter of Rights and Freedoms, specifically the right to full answer in defence. The CCCDL is concerned with this clause in relation to the amendments it makes under proposed section 486.31 that would allow some witnesses to testify anonymously. Practically, this would limit our ability as criminal defence lawyers to cross- examine the witness, which is a key part of our job in defending our clients. It would prevent the defence from knowing not only their name but also critical identifying information.
Finally, I will add to what my friends have spoken about in terms of the sentencing regime in section 718 of the Criminal Code. In a way, how clause 23 amends section 718, it makes it redundant and places greater emphasis on incarceration and removal of the offender from society. The additional weight on protecting society as a fundamental purpose of sentencing and the repetition of harm done in subsections (a) and (f) of 718 tips the balance in favour of protecting society over the purposes and principles of sentencing, such as proportionality, the circumstances of the offender and the offence, rehabilitation and reintegration.
We also adopt the Canadian Bar Association's stance in their submissions that the increased use of mandatory minimums across the country and our overreliance on incarceration in this country make this amendment of great concern, especially as it relates to the sentencing of Aboriginal and racialized communities in this country.
On behalf of the CCCDL, I thank you for the opportunity to be here and welcome your questions.
Robert Hooper, Chairperson, Board of Directors, Walk With Me Canada: I'm a personal injury lawyer and a victim rights advocate. My law practice since 1992 in Ontario and New Brunswick on a daily basis encounters victims of various crimes, including but not limited to assault, sexual crimes, human trafficking and murder. In my representation of those parties in the civil justice system, I give information to them on a daily basis concerning their involvement in the criminal justice system or the lack of their involvement in the criminal justice system as a victim.
Also, I come before you as the Chairperson of Walk With Me Canada, a front-line service organization that rescues people who have become trafficked victims in this country.
Candidly and honestly, there is no uniform bill that will satisfy all victims. I only speak for the victims I encounter in those two spheres mentioned. Even in that case, some of them may look for a few different provisions in Bill C-32.
As a general overview, I take the position that the bill strikes the appropriate balance amongst the rights of victims, the rights of the accused and the administration of justice. In particular, it is my view that the bill looks at the Charter of Rights and Freedoms, the accused offender and, for the first time, looks at the rights of a victim of a crime and places at least some emphasis on his or her right to gain information and to be heard in the criminal justice system.
The overarching complement in this bill is that the provisions do not lengthen the criminal justice process. I tell you that, uniformly and unilaterally, victims indicate to me that they do not want a bill of rights or any other piece of legislation that lengthens the process by which the alleged offender is brought to justice and sentencing takes place. Efficiency and timeliness in the process are in order. I am told this will allow the true healing to commence, and this is a very important component for the victims I represent.
It is our view that proposed sections 6, 7 and 8 are the cornerstones and stepping stones to a system that shows compassion, empathy and respect to the victims of crime in this country. In particular, proposed subsections 7(a) and (b) are germane to the success of the process.
One of the most common complaints raised by my clients and those involved with Walk With Me Canada is that they are not kept apprised of the investigation and the criminal proceedings. In other words, they are not alerted by the court system, being the arresting police officer, the Crown attorney or the victim services officer, of ongoing court dates, adjournments and vital information to allow the victim to decide on their own whether or not they would like to be part of the process. It is important to the people I serve that they be given the information and allowed to make the decisions themselves as to whether or not they attend and how they will involve themselves in the criminal justice program.
I'll share a story of a sexual assault victim who was assaulted in a community in which she now does not reside. The alleged perpetrator is her former stepfather. The criminal charges are ongoing. I spent a lengthy period of time with this young woman and her biological father. Over and over again, the key piece of information that bothered this young woman was the fact that she had no access to the status of the criminal charges against her perpetrator or the status of the attempt for him to change his bail conditions. In fact, she had so little information about the criminal justice system in general that she was afraid because she moved out of the community that the accused person, with his power and influence in that community, would be able to negotiate the charges being withdrawn or that they would disappear with her absence in the community.
Accordingly, I strongly support on behalf the victims that I have the privilege to interact with on a daily basis the sections on the right to information and, most importantly, the right to timely and accurate information in order that the victim may start to make their own choices about how they will deal with the criminal justice system and their perpetrator.
The sections concerning the protection of the victim and in particular their identity are also important to the people I serve. One of the ongoing themes and concerns with human trafficked victims is intimidation. A lot of the human trafficked victims and sexual abuse and assault victims are concerned about the requirement of being in a courtroom with the very person who breached their trust, intimidated them and took advantage of them through the system. Having the ability to be protected and not be intimidated in the process by the use of testimonial aids as an enshrined and guaranteed right as opposed to a motion brought before the court being required is an advancement of victims' rights that we strongly support.
With respect to the participation section, in my view, 14 and 15 are a step in the right direction. Proposed section 14 is a very good step that allows the victim to participate in the ongoing proceedings outside the courtroom when plea bargains and arrangements for sentencing are being discussed. It would be helpful if the section set out a list of the minimum number of times that the party could or would be involved — for example, that their views at least be heard on the issue of withdrawal of a charge or a plea to a lesser but included offence and, of course, on sentencing. If one of the sentencing principles in this country remains specific deterrence, the victim's knowledge of the offender would assist in understanding what specific deterrence may look like in this particular circumstance.
Proposed section 15 dealing with victim impact statements is a positive development for victims in Canada. The process of how to write a victim impact statement and samples or precedents or some assistance should be considered when the bill is being carried out in communities across this country.
Having the specific restitution order enshrined in the victims bill of rights will be of assistance to victims. For example, the court having the ability to assist in obtaining a civil judgment against a labour trafficker will, as I understand from the victims, allow them to regain some dignity and potentially provide some financial stability to restart their lives. It is trite to say that streamlining the process allowing victims to recover financially from the devastation of crime is a good start.
I pause to say I recently represented a woman sexually assaulted on a university campus. The gentleman was criminally convicted a few years ago, and she had to go through a civil process much like one of the gentlemen who testified earlier before this panel. She was awarded a judgment $1.5 million, which sounds like some movement towards restoration of her life. Unfortunately, the gentleman, the day after the trial, quit his job, and so I anticipate she will not see one penny of that. If there was a restitution order, it may have helped.
The Chair: I will have to ask you to sum up. Thirty seconds.
Mr. Hooper: Sure.
The complaints process from proposed sections 25 to 29 is one that we support. Having the ability to complain to a body with a right to a remedy for the infringement and the denial of the rights gives the document some teeth.
I'll sum up by saying I understand that given the British North America Act and the various issues that will create with the provinces, I'm not sure how that will be put in place, but I welcome a complaints process that gives the victims a right to complain.
The Chair: Thank you, sir.
We will move to questions now, beginning with the committee's deputy chair, Senator Baker.
Senator Baker: I will ask just one question off the top so it would not take very long.
First of all, thank you, Ms. Yanful, for your continued appearance before our committees. You make a great contribution every time you appear.
Ms. Roy, you made a very strong argument for making the restitution order, to use your words, "mandatory." That hits home to us here on the committee because we know that this bill says that a judge "shall" consider making a restitution order, but then it says, "order under section 738" and section 738 says the judge "may" consider. We have a bill that says "shall" consider 738, and section 738 says the judge "may." Your point is well taken. It should be mandatory. If it says "shall" in the bill, why not change 738 to make it "shall"?
Mr. Hooper, put on your hat for a moment as a personal injury lawyer. As a personal injury lawyer, your damages for psychological or emotional damage, which is in this bill, would be general damages — loss of enjoyment of life, pain and suffering. Pecuniary damages are specific — future loss of income, past loss of income up until trial and so on. Under this bill, the only restitution applies to receipts for things that have happened up to trial. I want you to verify that and tell us whether or not there is a problem because, if you make that an order of the civil court, then once you accept money, you release, normally, a future obligation.
To Ms. Pentz, thank you for appearing. I have read a lot of judgments in which you have been appearing before the Court of Appeal of Nova Scotia. You've made a great contribution for the past 20 years; it's remarkable.
What provisions in this bill will contribute to the lengthening of trials? We have a problem; we have discussed it in this committee off and on. People just get their cases dismissed — an accused — 11(b) of the Charter. Will any of this lead to further delays in trial?
Mr. Hooper first and then Ms. Pentz.
Mr. Hooper: Thank you, senator.
Your comments about what a civil justice judgment would look — general damages, pecuniary damages — is quite accurate.
I do not think that the restitution order that deals with receipts would preclude or limit a civil action. I would suggest that, presently, in the province of Ontario, there is a decision by the Court of Appeal that says if you've been convicted criminally because the standard is "beyond a reasonable doubt," essentially liability has been decided for a perpetrator. However, you still need to bring a summary judgment motion, so there are probably some amendments I'd like to see down the line that would make those dovetail a little better.
I think that the provisions of a restitution order under the Criminal Code do not preclude, and have not precluded, any of my victims that I have represented in courts. If it could help them with up-front counselling and restoration provisions by the judge, a "shall" would be fantastic.
Ms. Pentz: If the notification provisions are interpreted as meaning that the Crown has to notify victims prior to any resolution or plea arrangement, then certainly that will delay the process. Sometimes, to be quite frank, it's very difficult to track down victims. They may have moved. Their letters are returned. They are not living at that address. Phone numbers are disconnected. We have to send the police out to find them. There are some victims that are difficult to locate to get the feedback that the bill suggests we should have.
The other thing that may increase the time that's involved is some of the applications that victims would make, for instance, in order to have their identity protected at a trial hearing. I really can't envision many situations where the Crown would be making the application, but the victim themselves can make the application. That's going to be a delay and that's going to probably be a fairly lengthy application.
So if we see more applications on behalf of victims to enforce these rights then, yes, that will certainly slow down the system. That is a major concern.
[Translation]
Senator Boisvenu: Thank you very much for all your testimonies. I think that many of you are concerned about time frames. Earlier, Senator Hervieux-Payette spoke about the problem with judges. I think the situation in Quebec where, even though five judges were added last fall, there is a shortage of 80 Crown prosecutors. The workload between Quebec and Ontario has doubled. It is clear that the time frames in our courts right do not really have to do with the presence of victims or the victims' treatment process. There was a trial in Saint-JØrôme that ended last year after 39 postponements in a rape case. The trial took five years, and the individual was sentenced to eight years in prison. Since his pre-sentencing time counted for double, he was released. The defence used all kinds of tactics to delay the time frames because the time counted for double.
The time frames are too long, and the trials are postponed. We saw this in the case of judge Brunton, who released 31 Hells Angels in Montreal because the delays had lasted four or more years. These delays are often already drawn out by the defence. So I am wondering why you think this bill will ensure that victims will be able to draw out the delays.
[English]
Ms. Pentz: It's not a major concern in terms of the victims delaying, and I certainly agree that the system is slow as it is now. A lot of it is because of actions being taken by accused. If this act suggests that there may be more applications on behalf of victims, we would hope that those could be dealt with expeditiously, but if they can't, they will cause some delay in the process. Certainly not as much as we've experienced from other reasons, but if there are those applications, obviously the courts will have to take time to deal with them.
[Translation]
Senator Boisvenu: Ms. Yanful, you spoke in your presentation about the fact that someone can be called a victim even if that person's attacker is not found guilty. You expressed that concern, didn't you?
[English]
Ms. Yanful: Yes, senator. Thank you. As a defence lawyer, I have a concern and, on behalf of the CCCDL, there is a concern that the terminology that is used — "victim" — prior to a determination of guilt, prior to a conviction, is a bit confusing and misleading. At that stage, the individual is referred to as a complainant.
The proposed amendments under the bill try to change the word "complainant" in the code to "victim." We argue that that is not right. Before a conviction is held, the individual should be referred to as a complainant, just as the accused should be referred to as the accused and not the offender. Until a fair trial has occurred, that determination cannot be made.
[Translation]
Senator Boisvenu: In several provinces, in cases of rape and sexual assault, among others, women who make a complaint are still called victims. Even if there is no trial or charge, we recognize the concept that the person who makes a complaint is a victim. It seems to me that this already exists.
[English]
Ms. Yanful: It exists, senator, in certain situations. Our argument is that, yes, an individual can be considered a victim in terms of the tremendous tragedy that they have gone through. We heard from people on the first panel who have been through incredible — I can't even imagine — things in their lives. To an extent, they are a victim of what has happened to them, but in terms of their place before the court and before an accused, it's our belief that, currently, how the bill is changing the language on victims, from complainants to victims, in these specific situations is not appropriate.
[Translation]
Senator Hervieux-Payette: Good afternoon, everyone. The Canadian Bar Association is pretty much the bible when it comes to law, and I am talking about principles and theory here. You recommended more than removing certain clauses. I'm wondering whether you were given reasons why those clauses were not removed. In general, when a clause in a bill might have an adverse effect on the good governance of a case, we are normally reluctant to remove those sections.
Could you explain to me why your recommendations were not retained?
[English]
Ms. Pentz: I'm sorry; why our recommendations weren't —
Senator Hervieux-Payette: Were not accepted at the —
Ms. Pentz: Oh, at the parliamentary level.
Senator Hervieux-Payette: Yes.
Ms. Pentz: I'm not really able to speak on that. We made our recommendations and submitted our bill at that time, and obviously there was a thought that those were not compelling enough to change the legislation.
I think some of our recommendations are concerns about how it's going to be interpreted and perhaps not as direct, although certainly in terms of section 17 we feel very strongly that that will not be able to withstand a constitutional challenge.
[Translation]
Senator Hervieux-Payette: That is why I am talking only about the principles. A law that is not clear poses problems, even for the victim. That is why I asked the question. It would be simple to ensure that the legislation is clear, that it can be applied easily and that it does not cause delays.
In general, I think the greatest criticism we have heard from witnesses is that the delays ended up infringing on individuals' rights. I would have liked in this committee that we would have accepted your requests for corrections so that the legislation can be applied easily. If I understand you correctly, do you think that the legislation as it stands will help improve victims' situations, in general?
[English]
Ms. Pentz: It certainly will improve them by making sure that their rights are protected, but one of the key components we have found is that there has to be this educational component, the legislation has to be clear, victims have to know what their rights are, and we don't want to raise false expectations.
That was the point we made in a couple of issues, that there are a couple of different ways you could interpret a right. We didn't want to run the risk of victims interpreting it in a way that the authorities did not interpret it, and then they would end up feeling very disillusioned by the system, thinking they had a right that they didn't.
But certainly it's a tremendous step forward in providing rights. I think it will be a guidepost to everyone in the criminal justice system to making sure the rights are followed.
Senator Plett: Thank you to the witnesses for being here. I have one or two observations and then a couple of questions. I'll ask my questions, chair, all at the front end, in light of time.
I apologize to the Canadian Council of Criminal Defence Lawyers and the Canadian Bar Association if I'm judging you unfairly, but it always seems to me that when you appear in front of our committees, you are more concerned about the accused or the perpetrator than you are about the victim and their rights. Of course, this particular piece of legislation is not called the accused's bill of rights but, rather, the victims bill of rights. That is my biggest concern, not the perpetrator.
Ms. Yanful, as Senator Boisvenu pointed out, when a crime is committed, there is a victim. To call a victim anything but a victim I actually find quite offensive.
We had Ministers MacKay and Blaney in here from the Departments of Justice and Public Safety, and they talked about the extensive consultation process that they had gone through with this legislation.
My question is at least to the bar association, and maybe to the Canadian Council of Criminal Defence Lawyers as well; you have a membership. I would like some answers here. If you can't give them to us today, maybe you can send them in, but I think they're fairly specific numbers that I would like.
I would like to know how many members of your association you consulted regarding your position on the victims bill of rights. Could you tell us how you consulted, whether it was by teleconference, email, et cetera? I would like to know how many responded to the consultations. I would like to know how many of these people, the lawyers that you consulted, actually specialize in victims' rights.
If you could answer those questions here, fine; if not, I would appreciate your getting us those answers, please.
Ms. Pentz: I can indicate for myself, as chair of the Nova Scotia branch, that I sent an email out to all our members asking if there were any comments on the bill. I don't recall how many I received, but quite frankly there weren't a lot of them. Certainly, as a Crown prosecutor, I had received input from my colleagues about this matter. I am not sure if we can be any more specific or if we're able to provide numbers.
Ms. Schellenberg: I can't provide exact numbers, but I can tell you about the process. It's a representative and democratic process. We have people like Ms. Pentz, who represent each part of the country. They're responsible for passing any opportunities for commenting on proposed legislation on to their broad membership at the local level. They feed their input back up to the national group, which consists of about 35 people.
Senator Plett: How many specialize in victims' rights legislation?
Ms. Schellenberg: About half of our members of the criminal justice section are prosecutors, and I would say that they specialize in victims' rights, dealing with victims every day.
Senator Joyal: I would like to come back to proposed clause 23 of the bill that you have raised, Ms. Yanful and Ms. Pentz, in relation to the sentencing provision. My concern is especially in clause 24, the amendment to 718.2(e), which refers essentially to the Gladue principle, which is the protection of Aboriginal people when they are found guilty.
The Gladue decision, if I remember well, is a decision rooted in section 25 of the Charter, which protects the status of Aboriginal people in Canada. The Supreme Court has made a specific exemption in relation to the Aboriginal people regarding the sentencing. In other words, when it comes to the sentencing, the Supreme Court has come to the conclusion that for reasons enshrined in section 25 of the Charter, they are entitled to specific consideration.
This amendment, of course, would dilute that conclusion of the Supreme Court. In my opinion, since the conclusion of the Supreme Court is rooted in the constitutional rights of Aboriginal people, it seems to me that that section will be open to challenge on the constitutional ground that the Supreme Court has already stated, in Gladue, that we cannot tamper with that principle. Do you have comments to make on my conclusion that this section would be open to a court challenge?
Ms. Pentz: I think that's one of the points that has been brought up by previous speakers, and it was certainly one of our concerns: that by putting emphasis on that section in terms of the harm caused to the victims, it may distort the weight given to the Aboriginal status of an offender. Yes, we feel that's a very valid comment.
Senator Joyal: Ms. Yanful, do you want to add anything?
Ms. Yanful: Senator, we would agree, especially given the placement of the language, the fact that the Aboriginal offender still comes at the end. But it refers to the protection of society first, before the consideration of Aboriginal offenders, and that's one concern we have as well.
Senator Joyal: My other question is in relation to clause 17 of the bill, which is the right of a witness to testify in confidentiality, in other words, outside the presence of the accused person. I read section 17 of the bill again. It seems to qualify section 1 of the Charter. There are rights in the Charter of Rights, like section 7, that are open to qualification under section 1. Those rights include the right to be interpreted in a free and democratic society, a reasonable limit. I was trying to read in the proposed bill, clause 17, if there is a reasonable limit there that somebody could argue could temper the fundamental right to a full, fair and complete defence. Don't you think there will be an argument there, to save clause 17 of the bill?
Ms. Pentz: I know when Minister MacKay spoke and he was questioned about clause 17, he spoke about organized crime, police officers doing undercover work and perhaps terrorism type of offences and how those people needed to be protected. The problem is that when we look at section 12 of the proposed victims bill of rights, it says, "Every victim has the right to request that their identity be protected . . . ." So it's overly broad in that sense. Yes, there may be a very narrow classification of witnesses for whom this could be supported under section 1, but the bill is just too broad because it says "every" victim has the right to make that request. Our concern is that it's overly broad.
The Chair: Thank you for the concise responses.
Senator Batters: Ms. Yanful, earlier you were speaking about your definition of "victim," and I'm wondering whether your definition would perhaps not include Dale Sutherland that we heard from earlier today. The offender that he unfortunately faced was Ernest MacIntosh, someone who molested him from the time he was 9 years of age. He appealed his case all the way to the Supreme Court of Canada, and the court threw out the charges because of delay, as he told us here today. So do you consider Dale Sutherland to be a victim?
Ms. Yanful: I think our issue with the change of terminology more reflects on the fact that it doesn't sufficiently address varying degrees of victimization.
Yes, we have problems with the fact that "complainant" has been changed to "victim" but more so, if the concept of victim is going to be expanded, then what does that mean? Who is it including? Why isn't it including perpetrators' family members?
Senator Batters: I am specifically asking, do you consider Dale Sutherland to be a victim since Ernest MacIntosh's charges were thrown out because of delay?
Ms. Yanful: I can't answer that, senator.
Senator Batters: I wanted to ask Ms. Pentz a question and make the comment that I've been on this committee for about two years. I don't recall a case in that time where we have had the Canadian Bar Association before us supporting government legislation. Usually your organization is telling us that one aspect or another of our legislation will be unconstitutional.
One case in point was our prostitution bill, Bill C-36, which I sponsored in the Senate, legislation that the CBA opposed as unconstitutional. I found it interesting that, today, the Ontario Liberal government's Attorney General has in fact now found that the legislation is "constitutionally sound."
In any event, I was pleased to see your brief on this bill today, the proposed victims bill of rights, and that your organization stated:
This Bill is an important step for victims of crime. As a whole, it is a responsible piece of legislation that would articulate specific rights of the victims without creating significant procedural roadblocks for the administration of criminal justice in Canada.
I'm wondering if you could tell us a little bit more about the parts of this legislation that you do support as representatives of the legal profession, including many Crown prosecutors, of which you are one. How do you see the victims bill of rights as important for victims in our legal profession?
Ms. Pentz: We certainly support the informational component. Victims should be kept advised and apprised. They should know who they have to contact to get that information, and there should be someone contacting them with that information. A lot of that comes from victim services, at least in my jurisdiction, to keep victims informed. They should have an open communication with the Crown to find out what's goes on with the case.
Where we have any sort of issue, as I mentioned before, is that sometimes we just cannot notify of every step that is taken until after it is taken. Although as prosecutors we would like to have more consultations before, it's just not workable in the way that the criminal justice system operates.
[Translation]
Senator Dagenais: My question is for Ms. Roy. What proportion of victims or their families do you think will want to participate in the process through the victims bill of rights? If there is better access to information through this bill, will that be enough for those individuals?
Ms. Roy: By applying the bill, we will be able to determine if it is enough. However, I would like to remind you that we represent close to 600 families who have experienced unspeakable tragedies. This bill will give them better access to information. It will allow them greater participation in the system and, above all, it will give them a greater place in the legal system.
Perhaps the bill is not perfect, but I think the courts will have no choice but to take into account those rights, and the courts' interpretation will provide a greater place for victims.
Senator Dagenais: Thank you, Ms. Roy.
[English]
Senator McIntyre: Thank you all for your presentations. My question is directed to the Canadian Bar Association.
In your brief, your association is making nine recommendations regarding Bill C-32. Obviously we don't have time to review each recommendation. However, I draw your attention to recommendation No. 1, page 2 of your brief, which states:
The CBA Section recommends that subsection 7(a) specifically state that it does not entitle the victim to access investigative material.
The brief then goes on to explain what is meant by investigative materials, even suggesting that having access to the material "would be unworkable for prosecutors and for the overall administration of justice."
Correct me if I am wrong, but my understanding of Bill C-32 is that it is framed in such a way that it addresses that particular issue. As you know, there are limitations to the bill. It is to be applied in a manner that is reasonable in the circumstances, and it is not likely, amongst other things, to interfere with police discretion, with ministerial discretion, delay or compromise an investigation, interfere with prosecutorial discretion, delay or compromise prosecution. Could I have your thoughts on that, please?
Ms. Pentz: You're entirely right that that is how the bill will be interpreted by me and others involved in the justice system. Our concern was how the word "outcome" is going to be interpreted by victims, because a lot of victims want to know who the police spoke to, what this witness or that witness said. We're not able to give it to them, and I think this bill supports that position on our behalf. But our concern is if victims think "outcome" includes the fruits of the investigation, they will be very disappointed when they're told no, that's not what it includes. We don't want to set victims up with expectations that will not be met and will lead them to feel alienated by the system.
The Chair: The last question goes to Senator White.
Senator White: Thank you very much, Mr. Chair. I'll try to be brief, but I'm sure I won't be.
In relation to community impact statements, my understanding is that they have been used, certainly in Ottawa, in relation to drug cases already. A judge didn't want it prescribed as to who would provide those. In fact, the judge wanted to determine whether they would accept or not accept them based on the type of impact statements, so many were provided often by the police. Why do you see us wanting to prescribe it so much rather than allowing the judges or the courts to determine whether or not they are representative of the community?
Ms. Pentz: Ultimately it will be up to the judge to decide that, but our thought was perhaps some more direction in the bill — there's considerable direction about what goes into a victim impact statement, not what goes into a community impact statement. We want to make sure that whoever files a community impact statement is truly representative of the interests of the community.
But you're quite right. Ultimately it will be the judge to determine that. We simply felt it would be helpful if they had some guidelines as to how they would determine that.
Senator White: Ms. Yanful, I spent 32 years in policing. I have seen victims where accused were not found guilty and I've seen victims where accused were never charged. I have seen victims where accused were never found. In a case in Yellowknife — I'm glad you referred to it — I've seen hundreds of victims of residential of school abuse where the offenders were dead. I have to tell you that every one of them was a victim. As much as I respect your comment on that, I find it difficult not to consider those people as victims.
The Chair: Thank you very much, witnesses. It's appreciated.
(The committee adjourned.)