Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 28, Evidence - April 2, 2015
OTTAWA, Thursday, April 2, 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 10:31 a.m. to give clause-by- clause consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Welcome colleagues, invited guests, 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 complete our study of Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts with the clause- by-clause consideration of the bill. This is our fourth 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 sen.parl.gc.ca website, and you can find more information on the schedule of witnesses on the website under "Senate Committees."
Before we begin, I want to advise members that we have, as you can see, a number of officials from various departments with areas of responsibility for this bill who are here to answer any technical questions that members might have. From Justice Canada, Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section; and Pamela Arnott, Director and Senior Counsel, Policy Centre for Victim Issues. From Public Safety Canada, Daryl Churney, Director, Corrections and Criminal Justice Division; Christy Hitchcock, Senior Policy Analyst, Corrections and Criminal Justice Division; and Hasti Kousha, Counsel, Legal Services. From the Parole Board of Canada, Suzanne Brisebois; from the Canada Border Services Agency, Carl Desmarais; and from Correctional Service Canada, Commissioner Don Head, accompanied by Claude Pilon, counsel.
Before we move to clause by clause, I would like to open the floor to members. If they would like to direct any questions to our officials, this would be an opportune moment.
Senator Baker, do you have any?
Senator Baker: There is one section that perhaps Ms. Morency could provide further information on and that is the restitution section of the bill, which includes clauses 16 and 17. When we see the actual enactment of those two clauses further on in the bill, we see that restitution provisions that are already in the Criminal Code remain there; is that correct? The restitution provisions in the Criminal Code, which are the same as what is being incorporated in this bill, the word used is that the judge "may" and not the judge "shall," that this retains the judicial discretion in the awarding of restitution. I would also ask whether or not any consideration was given to changing the word "may" in what is presently in the Criminal Code to "shall" to match what's in this victims' bill of rights?
The reason I ask this question is because all of the witnesses we heard from appeared to be under the understanding that there was a mandatory provision, that it was somehow mandatory. Can you verify that although you use the word "shall," it goes to what is presently in the Criminal Code, which is the court "may"?
Pamela Arnott, Director and Senior Counsel, Policy Centre for Victim Issues, Department of Justice Canada: I'd be happy to answer that question, senator.
If you look at clause 29 of the bill, it creates section 737.1. In that section, what's proposed is indeed the word "shall" — the court "shall consider . . . ." That will precede 738.
The purpose of 738 is that it indicates to the court the heads of damage or loss, if you will, upon which a restitution order can be made so that the wording in the code will become the court "shall consider" the imposition of a restitution order on an accused person.
Senator Baker: But "shall consider" what is under the section in the Criminal Code at present, which allows the judge the discretion of granting any restitution.
Ms. Arnott: That's correct.
Senator Baker: Was there any consideration given to or is it problematic to expand on what is already in the Criminal Code as far as restitution orders are concerned? We went over this in detail at a previous hearing in which we discussed that under the present restitution form under the Criminal Code it applies to fraud. It specifically identified section 380 of the Criminal Code. Under that section, in a case dealing with fraud, as an essential element of the proof of fraud one must prove loss of some sort.
It is a part of the judgment of the court that an essential element is visited and clear on its face that there was an actual loss, which could then be, under the form that's under this bill at present, outlined very clearly. We're not changing the form. All we're doing is changing the form on top of the form. We're not changing the wording in the form which applies to fraud, the essential elements of which have been judged in the case. If a person is found guilty, then restitution is ordered based upon the evidence before the court.
Now we have a situation where the judge has to listen to and adjudicate something completely new that perhaps during that case there was no loss visited during the prosecution of the matter, but we're still using that same form which in this case would be very limited to your receipts — bus receipts or taxi receipts. I think one section of the code deals with extraordinary expenses if you had to seek new accommodations and so on. Limited expenditures will only be considered under this bill.
Unfortunately, we're calling it damages. We're calling it psychological as well as physical. That's what's in the bill. Psychological damages are not considered under that form in any way, shape or form.
My question to you is this: Was any consideration given or is there a problem with enlarging the restitution available under this bill that would then allow victims what they really believe, that they're going to be able to get restitution for their psychological damages? That's what we heard before this committee yesterday. Was any consideration given or do you think there was a problem with that?
Can you answer the question? You don't have to answer the question.
Ms. Arnott: I would be pleased to answer the question, senator. I think the answer has several parts to it.
First of all, what I heard from a number of witnesses led me to think that there is not an understanding of the difference between restitution and compensation. I think when you heard witnesses talk about the ability to get a payment for psychological harm, they were referring to compensation. Compensation is not something that the federal government provides. It's only provinces and territories. It is a payment from the government to a victim.
Restitution, on the other hand, is part of a sentence of an offender. You're quite right to say it is limited to specific heads of damage, heads of loss, which are laid out in section 738 of the code. Restitution is part of the sentence, so a judge, in taking into account all the principles of sentencing, will balance a restitution order.
To your other point, we are not making any changes to the areas or the heads of damage for which restitution can be ordered. Those are listed in (a), (b), (c), (d) and (e) of 738. What we are proposing is there be changes to the timing of a restitution order, the enforceability or enforcement of a restitution order.
Senator Baker: One final question. The restitution order is given by the judge. The provision in this bill says is that if payment is not made, it can become an order simply by filing it as a civil action before the court in whatever jurisdiction this order is given.
Yesterday we heard from a personal injury lawyer who verified to us that in a civil action the heads of damage are quite different from the heads of damage contained in what you just outlined under the code in this restitution order. In other words, this restitution does not involve loss of enjoyment of life. It does not involve pain and suffering. It does not involve future loss and expenses such as psychological counselling or physical or mental damages. This restitution order covers none of that.
When you file something with a civil court, you file it as an order of the court that it be paid. When it is paid, the lawyer on the other side says, "Okay, here is your money and you must now sign on the dotted line that this releases us from further damages." That's a normal procedure in civil court.
Was consideration given to putting a sentence in this particular law, or in the future, that would say that this restitution order could not be determined or could not be considered by the court as being a final disposition of the matter? So that it wouldn't influence.
You see, the witness we heard yesterday, he's an expert in personal injury law. We understand about personal injury law, yes, but once you're given an order, a final judgment by that court, a release is signed in order for you to get your money. If you sign the release, then you have no further action down the road. All of these people who will get restitution under this bill will not be able to proceed in the future with losses. They may not be cured over a period of time. They may suffer irreparable damage down the road, as one would in personal injury cases.
Was consideration given or was there any suggestion to making this restitution order not a final order of the court, not determinative as a final settlement for damages in a civil order, which this becomes after it's filed?
Ms. Arnott: The first thing I would indicate, senator, is that we are using the criminal law power as our authority to bring this bill forward. We were deliberately not venturing into the civil law and civil remedies.
The next thing I would offer to you is, as you know, the principles around the restitution provisions concern ascertainable losses and losses that are very directly related to the commission of the offence.
Some of the examples you have given, they would have to be proven on a much different standard if they were brought before a criminal court. They're not things that are in the case law or in the heads of damage that can be brought under the criminal law provisions.
Senator Baker: Thank you.
[Translation]
Senator Boisvenu: Ms. Arnott, the victims we heard from were concerned about the complaints mechanism. As I see it, that mechanism is the key component of the bill, because the complaints will make it possible to identify gaps in the legislation and make it better going forward. I'd like to know who is going to establish the complaints mechanism. Will it be the same across all departments? How will victims be informed of their right to file a complaint and the procedure for doing so?
Ms. Arnott: Each department will establish a complaints mechanism, in accordance with its operations, responsibilities and mandate. The government intends to set up a single Web site that will provide victims with a variety of information, including where to file a complaint, the procedure to follow and the recourse available to them in relation to the complaint.
Senator Boisvenu: Clause 25 addresses what happens when a victim has exhausted their recourse, for example, when they are not satisfied with the Parole Board of Canada's response to their complaint. The clause stipulates that
(2) Every victim who has exhausted their recourse under the complaints mechanism and who is not satisfied with the response of the federal department, agency or body may file a complaint with any authority that has jurisdiction to review complaints in relation to that department, agency or body.
Would the ombudsman come into the picture at that point?
Ms. Arnott: That is correct, in relation to parole and correctional services. But given how many agencies and people are involved in the criminal justice process, it wasn't possible to include every single authority in the clause. For instance, a complaint about a federal prosecutor can be filed with the lawyer's bar association or federal prosecution service management. So it's impossible to specify every single authority. And that's why the clause refers to "any authority that has jurisdiction."
Senator Boisvenu: One last question. Will a report with information on the complaints made in relation to each agency and department be produced annually or regularly, to help us, as lawmakers, make improvements to the bill of rights?
Ms. Arnott: That's a question for the management of each agency and department. Like you, I believe the remedial scheme will serve as a learning tool to departments and help them make necessary adjustments.
Senator Boisvenu: Very good. Thank you.
[English]
Senator Joyal: Welcome. I have two groups of questions. The first one is in relation to clauses 23 and 24 of the bill at pages 22 and 23. There's mentioned in clause 23 of the concept of "community."
[Translation]
In French, it's "collectivitØ."
[English]
Clause 23 mentions the following:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; . . .
I want to underline the words "harm done to the community."
Clause 24 is an amendment to section 718.2 of the code:
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community. . . .
In other words, there is the introduction of the concept of harm to the community.
I checked the Criminal Code, and the definition of "community" is not included in it. On which criteria will the evaluation of the community be defined? Is the community the neighbourhood, the village, the city, the province, the country? How many people are concerned in the community? Who is concerned in the community? How do you measure the harm in the community? It seems to me that this is a very loose concept introduced in the code.
As you know, since this deals with sentencing, if a victim will want to make a statement, the judge who will have the responsibility to appreciate the harm done to the community is left with a very loose concept that has no objective criteria to determine it. I think of some cases that are very "mediatized" because the media have been after the situation and broadcasted it or printed it in the paper. In that case, regarding the damage, we would know the community is informed, but there are many other cases whereby it's in the court, and the media happens not to be there, so there is no harm to the community because it is more or less confidential.
It seems to me that this concept is so loose that I wonder what you had in mind to help the court adjudicate on such terms as "community" and "harm to the community" and who is harmed in the community. Which group of citizens is harmed in the community? Who is not? It seems to me this is a concept that needed to be framed to help the court measure the extent of the harm to be able to impose the sentence according to what the bill proposes to achieve.
Ms. Arnott: Senator, I'll answer you in regard to community, and then I'll a ask my colleague to answer you in regard to the sentencing, which I think is where you started your question.
Under the Criminal Code as it currently stands, courts are already determining what a community is for the purposes of a victim impact statement. In the case law we can see cases where the courts have defined community in a number of ways. They've defined community as a First Nations community, where there was a community impact statement submitted about the impact of drug crime, or about the impact to the community when a father was found guilty of criminal negligence in regard to his children.
Senator Joyal: That's the family.
Ms. Arnott: In one case it was the family; in the other case it was the First Nations band. In other cases it's been a municipality that presented a community impact statement in regard to, again, drug crime, specifically the theft of hydro.
We have seen community impact statements from religious groups, so hate crimes. A synagogue presented a community impact statement in regard to the impact of hate crimes on that ethnic religious community. So courts now have had discretion and flexibility to understand the impact of the harm of the offence.
One of the things we are proposing in the bill to address the concern that "community" is a vague concept is that we include in the community impact statement that the person who wants to present the statement has to be able to identify to the court why they are entitled to present on the part of the community. Are they a registered charitable organization and they took a vote? Are they the hereditary leader of that particular group? We have indicated in the statement that the person has to be able to say why they are presenting that statement.
Senator Joyal: In other words, how "representative" of the community they might be. It will for the judge to establish if that person or group has a stand in relation to a statement on the impact to the community.
Ms. Arnott: That's correct.
Senator Joyal: So it's very subjective.
Ms. Arnott: That's correct.
Senator Joyal: As you say, the term "community" in one case might be a family or another case, a neighbourhood, or, as you say, a First Nation. Well, a First Nation might live on a reserve and the boundaries and sometimes the remote location of a reserve.
But there are many cases. Most crime happens to be perpetrated in large cities. As I mentioned, it's the media that really alerts people about that, where people might feel aggrieved because of that. It seems to me to be such a vague and fluid concept that it will open the door to a lot of subjective appreciation by the court, and it will be very difficult to come to some conclusions and certainty about who is allowed and what is the measure of an impact statement on the community.
Senator Baker: As a follow-up question to Senator Joyal's, I'm sure that what he had on his mind was what I had on my mind as I listened to your answer. When a submission is made to a court with criminal jurisdiction, the question of standing always arises. You have to have standing to become part of a proceeding.
These things normally require a full hearing. You see judgments of the court just on whether some individual or some organization has standing. How long does the Supreme Court of Canada spend determining whether or not an organization or community organization or an individual speaking on behalf of the community has standing? That happens in every court.
Are we to assume, then, that the judge will be making the determinative judgment as to whether or not those several people who present community impact statements will have standing. If that is a fact, then won't this just logically stretch out a trial to make it almost unworkable? The period of time determined when a trial begins and ends is when the charge is laid, when the plea is entered and when the sentencing is completed. This will be part of the sentencing procedure. This will be part of the sentencing hearing.
Isn't Senator Joyal correct that this will raise the question of who has standing? Somebody just can't fill out a form that we've given to them saying "community impact statement," and then have somebody present another form completely opposite to this one with the same organization or community being represented in each one of them. They have to be judged on standing.
Isn't Senator Joyal correct that this will stretch out the sentencing hearings, that this has the possibility of doing so? Isn't there a mechanism that we could institute in this bill to shorten that process so that we won't have again some person getting off with some of the worst crimes committed in this country simply because it took too long for the trial to conclude?
Ms. Arnott: First of all, I would indicate, senator, that what we're talking about here in terms of victim impact statements, community impact statements, as you said, is at the sentencing portion. The amendments we're proposing don't affect the length of time between being charged, the length of time at trial, all of those other parts.
Senator Baker: But the Supreme Court of Canada has clearly — okay. Go ahead. That's part of the trial, Your Honour.
The Chair: Back to Senator Joyal.
Senator Joyal: I wanted to flag that point because it seems to me that there is a potential there of uncharted territory that is not well-defined by the court up to now and that it would create some problems.
My other question is more linked to the very nature of this bill. It is on the definition of "victim" in clause 2, page 2, in the section titled "Interpretation." At line 25 of clause 2, the term "victim" is defined as meaning "an individual who has suffered physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of an offence." There is an element there of measurement of sufferance. You have to have suffered something.
Who is the authority that determines that sufferance? We are instituting a bill of rights. To have the four rights that are included in this bill, you have to be a victim. That's the premise of the bill. Who determines that you are a victim? That, to me, is a fundamental element. How do you prove that you have suffered? Somebody might say you didn't suffer anything. You say that you had property damage. "No, you had no property damage."
In other words, there is the implication in that concept that you come forward, allege that you have suffered, that you are a victim and that are entitled to the rights that the bill states. I am trying to wrestle with that concept on which ground this bill is rooted and how somebody can challenge that you're not a victim, because the bill establishes that once you are a victim, you're entitled to a certain number of rights and consequences.
We are wrestling with the concept of damages that is fluid among various provinces. It seems to me that if, as a society, we establish that a victim has a right — and I agree with that — then we have to be sure that when somebody claims he or she is a victim, there is a capacity to confirm or to ascertain that claim.
I read the "Whereas" portion of the bill to see if there was another element that could be linked to that, but I didn't find the answer to my queries in relation to that conceptual element in the bill.
This is an important bill. I certainly don't underestimate the importance of this bill in terms of what Parliament is asked to do in establishing those rights. But when you establish those rights, you have to establish the person who is entitled to those rights. In our Charter of Rights and Freedoms, the mere fact that you are an individual, that you are a human being, which is an objective criterion, means you are entitled to those rights, or citizens are entitled to a right. The "citizen" concept is measurable. But here it's linked to sufferance, and who should be able to confirm that there was a sufferance? It's the sufferance that establishes the link between the person and the damages that have been done.
That's why I feel there's still something missing there conceptually to establish those rights on a much firmer basis for the compensation that should follow at the end of it. I'm not sure I'm being understood, but that's the reflection I had in rereading it. I am asking myself: Are we really rooting those rights in the most irrevocable way?
Ms. Arnott: Senator, you're right that a very important part of the definition of "victim" is the damages or the loss. The other important part of it is that there has been the commission or alleged commission of an offence. So we're talking about a criminal act. It is absolutely subjective in the sense that one person may say, "This happened to me." They will go to the police, and the police will say, "I'm not understanding that that happened to you." But it is absolutely rooted in there being a criminal act for which there is loss or suffering.
To your point about who is going to decide, the rights arise at different points in the system. A victim goes to a law enforcement authority. It will be up to that authority to identify, yes, they agree that there was a criminal act, there was harm and the harm was to this person. They have the ability to determine that. We're not changing that now. That's what currently happens.
Similarly, for the Crown or correctional authorities, they undertake that same analysis. This person, as identified by the evidence, was subjected to this offence as identified in the criminal law, and here were the harms or losses.
The last point I would offer to you, senator, is that we're not dealing in any way with criminal injuries compensation in this bill. The rights that we're providing in terms of any financial aspect are in regard to a possible order of restitution. But compensation and the definition of "victim" for compensation can be found in provincial and territorial statutes, and they all have, again, a nuance of difference.
Senator Batters: My question actually goes back to the initial question that Senator Baker asked today. He named a number of different types of damages. All of those particular damages that Senator Baker was speaking about — we had this discussion earlier in the hearing process — are non-pecuniary damages. This bill deals with pecuniary damages, which are easier-to-calculate damages. I'm wondering if you could explain for us the reason for allowing those types of easier-to-calculate losses to be claimed under this particular restitution avenue but not those other types of more difficult-to-calculate expenses.
Ms. Arnott: Thank you, senator. The pecuniary damages that are properly subject of a restitution order are found in section 738, subsections (a) to (d). Those heads of damages are the items that are readily ascertainable. Part of the reason why the law sets out these heads of damages is partly temporal in that the sentence is imposed within a defined period after the offence, whereas some of the damages that Senator Baker or that you have suggested are longer-term damages that might not be able to be calculated or might not be known at the time of sentencing. Again, because this is part of the sentence, the court has that responsibility to be balanced in its approach and to apply a totality principle. A court could not order losses of future income or pain and suffering that would not be easily calculated as part of the sentence.
Senator Batters: Right.
As an example of something that would be able to be calculated, say an offender broke into someone's house by breaking a window. Would that broken window be the type of damage that somebody would be able to claim restitution for?
Ms. Arnott: Absolutely.
Senator Batters: This bill provides an easier process for what might be a smaller amount of money that might not be financially feasible for them to go through a trial process, a civil court process to collect those types of damages. Is that the reason for it?
Ms. Arnott: Absolutely, that's correct.
Senator Jaffer: I have two very short questions. There is something that troubles me about this bill. It's a very good bill and I'm supportive of it, but when do you define a victim? Is it after the conviction? Because normally you have a complainant. I have a challenge with that.
I will ask my second question as well. We have heard from prosecutors, and given my experience in my own province, that they are rushed and have a lot of work to do. You were saying that the victim issues would be after the conviction. If I'm not mistaken, yesterday a very seasoned prosecutor said that if somebody pleads guilty, for example, they would have to consult the victim. So that's before the conviction. For me, that would certainly delay the trial.
I'd like you to address those two things, please.
Ms. Arnott: I'm happy to, senator.
As I understood your first question, it was this: When is the victim determined? The victim is determined by the authority to whom the victim is claiming something. So, as I indicated to Senator Joyal, if a person believes that a criminal offence has occurred, which they were subject to and there was harm or loss, they would be seeking something — service, information — from an authority. In the example of law enforcement, they would have to have reasonable grounds to believe.
In regard to the statement that was made about plea bargaining or plea agreements and the amendments being proposed in this bill, the amendments do not require that a victim agrees with a plea agreement. The amendment proposes that to the extent possible — and we were quite deliberate in the language we chose — the Crown should be consulting and speaking with the victim about what is being proposed. The purpose of that, as we heard quite clearly from the consultations, is that victims did not want a veto but they wanted to understand. They wanted to have the information about why this agreement and why now. It was the view that most Crowns were receptive to having those conversations, understanding, as you say, that the workload for most Crowns is quite heavy and difficult. We put protections in the proposed provisions that where it is not possible for a Crown to have those conversations ahead of time, they need to have them as soon as feasible after the court has accepted the plea.
Senator White: Thank you for being here. I want to discuss the community impact statement, if I may.
I've seen the experience of judges accepting a community as a victim, particularly in drug cases where drug dealers are dealing in a specific area, but often the people they've allowed to speak in the court are complainants of the crime. So that's been the connection for the court. And I guess I'm trying to figure out whether this would satisfy this case. However, other cases where we've had people like Ed Horne, a school teacher who sexually abused hundreds of children in the North, we were unsuccessful in having a community representative about the long-term impacts that individual had on that community for decades because there was no direct connection to the community, other than the individuals, and because the community itself was trying to identify themselves almost as an individual; I guess the holistic impact Ed Horne had on Kimmirut, for example. I take it that the judge in those types of cases would at least be able to consider the impact the community received as a result of that abuser's actions on the community holistically. That's really what our goal is here.
Ms. Arnott: That's correct, senator. The provision being proposed in the bill is that the court shall consider a statement made on behalf of a community that describes the harm or loss suffered by the community. We're trying to make it clear to the court that they do have that ability to consider harm to the community and not harm only to specific individuals.
Senator White: I have seen a number of the residential school abuse cases where the communities would like to have expressed the impact these types of crimes have had. We would have actually have had the opportunity to be successful had the community expressed that 30 years after the crime, for example.
Ms. Arnott: Yes.
Senator Fraser: I have two questions which I imagine you can answer just like that.
Coming back to this question of the definition of the victim and the alleged commission of an offence, you may recall from the last time we were all here that I was a little concerned about that. I want you to clarify something for me.
I think what I heard you say is that for the purposes of this bill, allegation does not mean somebody going to the police and alleging that he or she has been defrauded or whatever. Alleging means, for the purposes of this, the definition kicks in once the authorities have determined that in fact an offence has been committed and that that person has suffered some consequence as a result of the offence. Do you see the distinction I'm making? It's not enough just for me to say, "My neighbour did me wrong." Am I right about that?
Ms. Arnott: Maybe I can provide a little precision.
There does have to be a criminal offence which you are alleging, and then, as you say, the authority — again talking about the example of law enforcement — has to have reasonable grounds. So if it was someone suffering from a mental illness and they were not correct in their understanding of reality, that would not engage the rights.
Senator Joyal: They have to be a complainant. You have to complain. To be a victim, you have to complain.
Senator Fraser: But simply complaining is not sufficient to kick in the provisions of this bill. That's the point I was trying to make, and I think you have just confirmed that.
Ms. Arnott: Yes. It has to be, one, grounded in a criminal infraction; and, two, grounded in reality. There has to be a reciprocal — the authority has reasonable grounds or believes on the evidence.
Senator Fraser: Then this is a real lay question. What happens if cases go to appeal and a conviction is overturned? I'm assuming the restitution orders, for example, wouldn't kick in until appeals had been concluded, but what about information from the Correctional Service, all of that kind of stuff? Would suddenly your entitlements disappear if the person's conviction had been overturned?
Ms. Arnott: I'll ask Mr. Head to answer in regard to what the Correctional Service does in appeals. What I can say is that the rights are specific to a point in time. The right of the victim to information about the investigation, about the trial, about that process, they would continue.
Senator Fraser: While the process is ongoing.
Ms. Arnott: That's correct.
Senator Fraser: I'm assuming Mr. Head has custody of somebody and the appeal court says no.
Don Head, Commissioner, Correctional Service Canada: You're correct. If the court releases them and they start the trial over, they're no longer in our jurisdiction. Therefore, this does not apply. We would only release information to a victim in relation to an offender who is currently under our jurisdiction.
The Chair: Anything else? That was a pretty fulsome discussion.
Senator Joyal: Upon reflection on the basis of this bill, I was trying to make some kind of reference with other Canadian rights. For instance, Canada has recognized that you're entitled to have your health protected. In the Chaoulli case, one that some of you around the table may know, the decision of the Supreme Court was that you're entitled to health care. If the state doesn't provide it for you, you can go to the private sector and the government must pay.
In this case, if you are a victim, we recognize that you have rights, but at which point is your right to compensation linked to your status as a victim? When you read the "Whereas" section of the bill, the last "Whereas" says:
Whereas consideration of the rights of victims of crime is in the interest of the proper administration of justice;
The word "justice" and your right mean that if you suffer a loss or a harm, in my opinion, on the basis of the objective of this bill, you're entitled to compensation. You can't establish a whole system of rights to participate, to be heard, to have information and to have remedies but fall short of the ultimate conclusion. That's why I think that in the establishment of this system, as much as when the Canadian government established the health care system, it needed the provinces to make sure that health services were delivered. In this case also, if we are logical with the system we have in place by recognizing the fact that somebody has suffered a right because that person is a Canadian living in this society, the end conclusion is that that person is entitled to compensation.
You might be right in that this bill is a first step, but it doesn't achieve the whole logical system or concept on which it is based because you are a victim. It is a Charter of Rights for victims, so if you say it's a charter, it has some meaning.
Ms. Arnott: Again, senator, I'd indicate that we're not establishing a right to compensation in this document. Compensation is governed by provincial and territorial statutes and programs.
I'd also indicate that when we conducted the consultations that underlie this bill, we heard from victims — many victims, not everyone — that they were not looking for a financial remedy; they were looking for information and they wanted whatever happened to them not to happen. Whether that happening was the offence or it was not getting timely information from the Crown or police, they didn't want that system problem to continue.
Senator Joyal: I don't want to argue because I know our time is lapsing, but your answer to me is that because some victims don't seek full compensation, then we don't need to establish compensation.
I'm saying that if you establish rights for victims — any victim, whoever, in whatever circumstance — ultimately that person is entitled to compensation. It's the same with the Charter. It doesn't apply only to the federal government; it also applies to the provincial government under any circumstances.
It seems to me that the concept of victim, if it is that important, and I totally subscribe to it, we have to bring it to the — I won't say to the ultimate end — the final point of the system. If we are to be more careful and more humane as Canadian society in relation to victims, we should find a way to achieve that. There is no commitment in those "Whereas" statements to take it a step forward in that direction.
The Chair: I think that has been addressed as adequately as it can be.
We'll come back to you, Senator Baker. I want to give everyone an opportunity.
Senator McInnis: That was my very question when you appeared here during the first day of the hearings. The concern I had was with "emotional harm" in the definition of "victim." It is wide.
What you said to me — and my time had elapsed — was that it is mentioned in six or seven other sections of the code. That's fine, but that doesn't substantiate it here. This is a difficultly, but as Senator Boisvenu mentioned, this bill, this charter, is evolving and we'll see how it works out.
With respect to compensation, the national government will be transferring funds to the provinces, who handle the compensation, as I understand it. I don't know if dollars would be specifically put aside for that, but I suggest to you that the purse had better be wide.
I know in my hometown of Sheet Harbour, as small as it is, if a senior person was unfortunately murdered, it would have an emotional impact on many people. Is that compensable? I don't know, but I think what Senator Joyal has hit on is something that we're going to have to watch.
Ms. Arnott: I don't know that I can say any more, senator, in terms of what we have about compensation.
Senator McInnis: I know. You don't have to.
Senator McIntyre: As I understand this bill, it may not be perfect, but it's giving victims a voice, not a veto. It's giving them rights as opposed to principles. If we want to achieve and we go a bit further, then we would have to make them parties to the proceedings, which is not the case here at all. That's the way I understand the bill. It's a voice, not a veto.
Ms. Arnott: That's correct, senator. The Minister of Justice indicated quite early on when he assumed the portfolio that in his view the creation of enhanced standing for victims would not achieve what he had heard from victims, and it would have a negative or a very important effect on provincial and territorial responsibilities for the administration of justice. As you say, the bill is intended to be a beginning.
Senator Baker: As a final comment, Mr. Chairman, I want to say what a great job Ms. Pamela Arnott has done before the committee. We commend her for all of her testimony in answering very difficult questions. We also thank Ms. Morency and Mr. Head for their testimony.
I would simply point out, Mr. Chairman, that the 11(b) argument we've been having or the observations that have been made with respect to 11(b) of the Charter, trial within a reasonable period of time, the Supreme Court of Canada determined in 2011 that the time period of a trial covered by 11(b) starts with plea and ends with the end of the sentencing.
The Chair: Thank you.
We've exhausted the discussion, so we will move to clause-by-clause consideration.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Colleagues, is it agreed that the remaining clauses be grouped according to the parts of the bill as described in the Table of Provisions of Bill C-32? If you have any concerns, obviously we'll stop.
Senator Joyal: In that context, Mr. Chair, at third reading I personally intend to introduce amendments to proposed sections 25, 28 and 29 of the charter, which appear on pages 7 and 8. So I would prefer to abstain when you put the question to those clauses, as much in relation to clauses 23 and 24 later on in the bill, at pages 22 and 23. In relation to those two clauses, I will have amendments.
The Chair: Pages 22 and 23, clauses 23 and 24?
Senator Joyal: Exactly.
I'm not opposed to the bill, but as I say, I would prefer to abstain on the vote when those clauses are called so there are no misgivings about the stand I will personally take on this one.
Senator Fraser: Perhaps we could group the other sections and go through those two sections on a clause-by-clause basis.
Senator Joyal: Exactly, which would avoid making things more complicated.
The Chair: So on that basis, we'll agree to group the clauses into parts of the bill.
Senator Batters: I wanted to be clear on what Senator Joyal just said.
Are you intending to introduce amendments to clauses 23 and 24 or proposed sections 25, 28 and 29?
Senator Joyal: There are two clauses, 23 and 24.
If you take the bill at page 7, under the heading "Remedies," there is proposed section 25. And at page 8, the following page, there are proposed sections 28 and 29. That is in that section.
Later in the bill, on page 22 and 23, there is another group of clauses numbered 23 and 24.
Those are the two sections. I know it is confusing, but it's the way the bill is presented.
Senator Batters: I appreciate that. Thank you.
The Chair: We will try and get through this, then, with that understanding.
Is leave granted on that basis?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry with the note, I gather, that Senator Joyal is abstaining on sections 23 and 24?
Senator Joyal: Proposed section 25 at page 7 and proposed sections 28 and 29 at page 8.
The Chair: Shall clause 2 carry with the —
Senator Baker: On division, I guess.
The Chair: We want it in the minutes that Senator Joyal is abstaining on those specified sections.
Senator Joyal: Exactly, with the intention of introducing amendments at third reading.
Senator Baker: Wouldn't it be simpler to say "on division" on those particular clauses?
The Chair: I thought Senator Joyal may have wanted it noted in the minutes, that's all.
On that basis, shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 2.1 carry?
Hon. Senators: Agreed.
The Chair: Shall clauses 3 to 36 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 37 to 44 carry?
Some Hon. Senators: Agreed.
Senator Joyal: Again, Mr. Chair, the same comment on clauses 23 and 24 on page 22. I intend to introduce amendments at third reading, so I would prefer to abstain at this stage.
The Chair: So noted. So clauses 37 to 44 carry with the understanding that Senator Joyal's abstention is noted and the reason is the same. Carried?
Hon. Senators: Carried.
The Chair: Shall clauses 45 to 51 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 52 and 53 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 54 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 55 to 59 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 60 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Some Hon. Senators: Agreed.
Senator Fraser: With abstentions.
The Chair: Carried with abstentions.
Does the committee wish to consider appending observations to the report?
Senator Fraser: No.
The Chair: Seeing none, is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: That you, members.
Before we adjourn, a couple of notes: The steering committee is going to meet following this meeting to discuss future activities. When we return from the Easter break our first order of business is 377, the labour bill, with which I'm sure you are all familiar. You will be receiving additional information. Our analyst is preparing an overview and summary of the deliberations that Banking undertook with respect to consideration of this bill. The bill has not changed in format, so we will be getting that prior to the hearings beginning as well.
Senator Joyal: In relation to the note that is being prepared, is it possible to pay special attention to the arguments raised on the constitutionality of the bill? I know Banking is not the forum where normally those issues are raised, but if you have the opportunity to look into that, I would appreciate that personally. Thank you.
The Chair: An appropriate suggestion.
Senator Baker: Mr. Chairman, also that every effort be made — of course I'm going to steering after this meeting — to have some legal representation, possibly some retired justices from the Supreme Court of Canada, to give testimony to this committee regarding what Senator Joyal just mentioned.
Also, Mr. Chairman, I will be bringing up the fact that we may have Bill C-2 as well, a government bill, when we return from our break.
The Chair: I appreciate the suggestion. I am assuming this bill was referred to us, and our primary focus should be the constitutional issue.
Senator Baker: Constitutionality.
The Chair: Absolutely. Thank you.
(The committee adjourned.)