Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 5 - Evidence - March 24, 2016
OTTAWA, Thursday, March 24, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:31 a.m. to study matters pertaining to delays in Canada's criminal justice system.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning. 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.
Earlier this year, the Senate authorized the committee to examine and report on matters pertaining to delays in Canada's criminal justice system and to review the roles of the Government of Canada and Parliament in addressing such delays. This is our tenth meeting on this study.
For our first hour, we have with us two familiar faces: Sue O'Sullivan, Federal Ombudsman for Victims of Crime; and from the Canadian Resource Centre for Victims of Crime, Heidi Illingworth, Executive Director. Welcome to you both. We certainly appreciate your appearance here today, and we are looking forward to your testimony.
I gather, Ms. O'Sullivan, you will lead off?
Sue O'Sullivan, Federal Ombudsman for Victims of Crime, Office of the Federal Ombudsman for Victims of Crime: Thank you very much, Mr. Chair and honourable senators. Thank you for inviting me here today to discuss the needs and concerns of victims of crime regarding delays in criminal proceedings.
For the purposes of this brief presentation, I plan to speak to some of the impacts of delays on victims of crime, highlight how supporting victims can actually increase efficiency in the justice system and identify promising practices in this area.
I would like to begin by providing you an overview of my office's mandate. Created in 2007, the Office of the Federal Ombudsman for Victims of Crime helps victims in two main ways: individually and collectively. We help victim issues individually by speaking with them every day, answering their questions and addressing their complaints about federal programs and services for victims of crime. We help victims collectively by reviewing important issues and making recommendations to the federal government on how to improve its laws, policies or programs to better support victims.
My office has heard directly from victims about the impacts of criminal justice delays on their lives, including emotional and psychological burdens as a result of ongoing unresolved criminal trials; anxiety about their role in the trial process, including testifying as a witness; and the financial burden from lost wages, child or elder care, and travel costs.
While these inconveniences are experienced by most victims involved in the justice system, they are compounded the longer the trial goes on. For example, the parent of a murder victim contacted our office and shared her experience with delay on her and her family. She had been unable to sleep at night or work since the murder. Her family was struggling both financially and psychologically. The start date for the trial was delayed for 14 months, and she did not understand why. The only explanation she got was that the accused needed to switch lawyers. She felt that this should not be allowed to happen. She also acknowledged that she has a lack of understanding of the system and how it works, which was frustrating.
Many other victims have shared feeling re-victimized by the unintended consequences of delays in criminal proceedings. They report feeling devalued and that their life is on hold until their case is concluded.
Lengthy delays in criminal proceedings can impede some victims' ability to move forward, and, in some circumstances, victims' access to justice can be completely compromised when charges are stayed as a result of unreasonable delay.
Clearly, work needs to be done to better provide victims with greater access to justice by addressing delay.
The recent coming into force of the Canadian Victims Bill of Rights, which provides victims with rights to information, participation, protection and to seek restitution, presents an important opportunity to align practices in providing victims with access to their rights with efforts to increase efficiency. Victims support services and use of technology can both be viewed as promising practices in this area.
I will discuss them briefly, while identifying how they can contribute to efficiency. Victim support services respond to victims' needs for assistance, navigating the criminal justice system. For instance, in England and Wales, the No Witness, No Justice program was established in five pilot sites with the aim of testing the efficiency and effectiveness of new working practices to improve levels of support and information given to victims and witnesses. The new working practices were delivered through witness care units that brought together police and Crown prosecuting services to provide a single point of contact for victims and witnesses; a full needs assessment for all victims and witnesses in cases to identify specific support requirements, such as child care, transport, language difficulties and medical issues; to highlight areas of concern, including intimidation; witness care officers to steer individuals through the criminal justice process and to coordinate support services; a continuous review of victim and witness needs throughout the case by the Crown and police; and greater communication and contact with witnesses about cases, including informing them of the case outcome or trial result.
An independent evaluation of the projects found that witness attendance at court increased by about 20 per cent, the number of trials that had to be adjourned to a later date as results of witness difficulties decreased by 27 per cent, the number of trials where witnesses withdrew their statements or didn't attend decreased by 17 per cent, and the number of trials where late guilty pleas were entered increased by 10 per cent.
Although similar programs currently exist in some jurisdictions across Canada, as we know, some communities do not have these services in place. For the programs that do exist, we know that adequate resourcing is often an ongoing challenge. The example provided shows that these types of programs can play an important role in increasing efficiency in the criminal justice system.
These types of victim service programs can also be made more efficient and can be supported through greater use of technology. Currently, electronic or online notification systems for victims that exist in Canada are limited to the corrections and parole systems. However, there are no systems that notify victims about developments in criminal case proceedings.
Although there should always be someone available for victims to talk to, a system integrating police, court and corrections information is an option among other methods for victims to receive information. This would provide a single online source where multiple criminal justice practitioners upload information that can be disclosed to victims. This could be one tool to reduce efforts by police, Crown and corrections to keep victims informed, while providing victims with the information they need to determine if and when they will attend or participate in proceedings.
The widespread use of victim support services and the efficient use of technology present important opportunities to increase victims' access to their rights while increasing efficiency. Ensuring that victim issues and witnesses are provided information early in the process so that they know what to expect and that they understand what is expected of them and the rights that they are entitled to not only can assist the Crown in presenting evidence and increase the likelihood of witness participation but also can minimize the need for adjournments to allow victims to invoke their rights.
In closing, I would like to reinforce the importance of considering the potential impacts of criminal justice reforms on victims of crime as recommendations to address delay are developed. We know that when victim issues are treated with dignity and respect, they are more likely to be satisfied with the criminal justice system, regardless of the outcome. In my view, this is also important because it is directly linked to Canadians' confidence in the criminal justice system.
I believe that practical reforms to address delays will benefit not only the accused but also victims, criminal justice practitioners and society as a whole. I would be pleased to answer any questions you may have.
Heidi Illingworth, Executive Director, Canadian Resource Centre for Victims of Crime: Thank you for having me here this morning to comment on delays in the Canadian criminal justice system.
The CRCVC has been working since 1993 in Canada to voice the needs and concerns of persons harmed by serious crime. We provide victims, survivors and stakeholders with support, research and education, and we work to ensure victims' rights are recognized and respected in the criminal justice system.
In relation to delays in Canada's justice system, we point out that the victims' interests, constraints and responsibilities are not often at the forefront, nor are they even considered in many cases when Crown and defence counsel are setting court dates. For that matter, the accused has constitutionally protected rights to be tried within a reasonable time. The Askov case has even resulted in many cases being thrown out for that reason.
Yet, there are no such protections for victim issues. Our centre believes constitutional protection is needed for victims in relation to delays. Having constitutional rights for offenders, as expressed in the Charter and the Askov case, is a prima facie form of inequality for victims, whose "rights,'' such as they are, often tend to be vague; unenforceable; legislatively defined at best; and built around, rather than substantively changing, the power structure of the criminal justice system. They are largely a form of "symbolic politics'' that make it look like something is being done, while substantively delivering little. Indeed, while victim issues are not explicitly referenced in the Charter, other groups not specifically mentioned have been read by the courts into the equality rights section — section 15 — of the Charter.
This could possibly become a legal issue costing the government time and money if it is not addressed. Delays and adjournments have a significant negative effect on the victim and their family members. They include, as Sue mentioned, ongoing stress and anxiety; getting prepared to testify only to have a matter adjourned for one reason or another — for example, counsel is not available or a conflict in the judge's schedule, et cetera; an inability to move forward with their lives; and the longer that the charges are before the courts, the less connected the victim feels.
We understand from speaking with victim services colleagues who work with victims in the courtrooms that a stay in proceedings or a successful 11(b) application is rare but devastating when it happens. As you know, a Crown makes this decision when they don't have enough evidence to proceed to trial. When it occurs, it is extremely upsetting. Victims have been robbed of their day in court, and they will never know what the outcomes of their cases will be. They have done everything right by coming forward to the police, providing a video statement and often testifying at a preliminary hearing. After a lengthy period of time, it all stops with a stay due to a lack of available court time or judges. The victim feels powerless and is re-victimized by the criminal justice system.
What can we do about all of this? We know that wait times are much too long, and an accused may appear before the courts many times before a trial date is set; sometimes it takes years for a plea to be entered. The longer the criminal justice process is dragged out, the longer the victims have to suffer and are constantly reminded of the crime. Victims have to take time off work repeatedly if they wish to be present in court. They often do not feel psychologically safe during this process and lose sleep, focus and their faith in the criminal justice system.
Many have to travel quite some distance, sometimes inter-provincially, to attend court only to arrive to hear that it has been postponed. Sometimes, a trial begins and there are a number of adjournments, postponements or scheduling problems and victims learn they have to come back in a couple of weeks. It is costly to take time off work, travel, secure daycare and even park their vehicles at court houses during trials, and only some of these expenses are covered.
While plea bargaining is a necessary part of the criminal justice system, some victims worry that pleas are sometimes reached because they free up court time and not because the prosecution only has enough evidence for a lesser charge.
Victims and their advocates remain concerned by lengthy delays reported frequently in the media. My board members from across Canada report that homicide cases are taking four to five years to get to trial, and we do not think this is acceptable.
Victims from across Canada have told us, number one, that accused persons use delay tactics to gain an advantage. They fire their lawyers again and again or try to represent themselves. Some will delay until they can assert that their fail trial rights are being infringed upon and ask for an Askov application to be granted. We hear this particularly when talking of victims in family violence cases.
Many victims feel that justice delayed is justice denied. As an example, we raise the case of Michael Wassill, a case from here in Ottawa. He was attacked in his family home on May 15, 2013. He was sheltering a female friend from an abusive male when the attack took place. He later died, on May 23 of that year, from injuries he suffered in the attack. He was just shy of his twenty-first birthday, and his death has irrevocably changed his mother Betty-Ann's world and that of his father, two sisters and numerous other relatives. Their overwhelming grief is compounded by the fact that the trial for the accused has been set for January 2017. Although a trial will not bring closure to their grief, it will bring some closure to the violent incident that brought his loss.
To the Wassill family, setting a trial almost four years after the incident is an egregious injustice. In their case, the accused was apprehended two hours after the incident occurred with two eye witnesses and forensic evidence linking him to the crime. The family is frustrated that there is no ability to address the timing of this trial when the Crown and police detectives are very confident in the strength of the case against the accused. The victims are concerned and disappointed that there is no mechanism for the system to expedite this trial and have it set within a reasonable length of time to ensure that witnesses can be called in a timely manner and that the family is not waiting years for peace and some finality to their loved one's case.
Lengthy waiting periods cause further stress for family members who are grieving and stuck and not able to get through that grieving process or start to move forward with their lives when a trial hasn't concluded.
Perhaps we can address some of the issues of delays through ensuring advocate resources in courtrooms: for example, more Crowns and judges, better-staffed courtrooms and efficiencies with technology to make sure equipment is functioning properly, such as CCTV.
Efficiencies in the courtroom rely on so many players, and it is a complex balancing act. Sometimes a Crown will choose to resolve to avoid having the victim testify — sometimes, they have to testify twice in Ontario — and ensure a conviction rather than having an acquittal and nothing for the victim.
Rather than focus already strained fiscal resources on improving efficiency, we feel the federal government should address the delays in the criminal justice system through the prevention of crime in the first place. The most effective and cost-effective way to deal with crime is prevention. All the rest is just picking up the pieces. Unfortunately, tinkering with criminal justice has never worked and will not work.
Victimization surveys in Canada show very high levels of crime occurring. We see that Statistics Canada reports 2.2 million Canadians, or 7.6 per cent of adults, who were victims of a violent crime such as a physical assault. An additional 14 per cent of households are experiencing some form of theft.
The Chair: I will have to ask you to wrap up, please.
Ms. Illingworth: There is an enormous cost of crime. Department of Justice statistics bring it in at about $55 billion, including all the trauma, property loss, wages, health care, and those sorts of costs.
We would ask you to consider recommending that the government focus about 10 per cent of what we currently spend on criminal justice, policing and corrections toward long-term crime prevention. Thereby, we will reduce the current demands on the criminal justice system.
Thank you for listening.
The Chair: Thank you. We will now move to questions, beginning with the deputy chair of the committee, Senator Jaffer.
Senator Jaffer: I have been in a law firm for a long time, and, listening to you, these are the same kinds of complaints that I have heard before.
When I was involved in the profession, one of the things that was recommended — and I ask this question of both of you — was the appointment of victim advocates. You may have said this in your earlier remarks, so if you have, forgive me. In Minnesota, they have victim advocates that help the victim through the process and advocate for the victim. I would love to hear from both of you on that.
Ms. O'Sullivan: Absolutely. I think we are both chomping at the bit to answer that one.
In my presentation, I talked about how we can actually expedite the criminal justice system by supporting victims. Having advocates — some people call them navigators, and you are right, in the United States they use the word advocate, and here we have victim support service, or people, persons or workers.
Across the country, we have victim support in place, either police- or community-based, and in some places we have it through the courts, through the victim-witness program. That doesn't exist across the country, so I would say that the argument we are bringing here, and what we want to re-frame, is that by properly supporting victims — if you think about it, something as simple as the study that I referenced in my opening comments did an evaluation that actually showed you a reduction — you will have more witnesses going to court and being willing to participate.
We know this; it's called procedural fairness. Much research has been done on this that shows that if victims feel they have been respected and treated with dignity, they will be more satisfied with the criminal justice system.
As far as our ability to do that, one example is here in Ontario. They recently introduced that they now have six designated Crown attorneys for sexual assault victims. They recognize the training and support that is required and the understanding of what goes with that victimization.
There are two things in the new Canadian Victims Bill of Rights: You can have an adjournment, if the victim didn't have an opportunity to give an impact statement, or restitution. Simply by having them in place — call them victim advocates or victim services — you are going to prevent any of these adjournments by having those things preplanned ahead of time and having those discussions.
I make these comments recognizing that, in many areas in Canada, there are tremendously committed people among all of the criminal justice participants who give every effort they can to do this. What we are trying to do is make sure that all of those supports are in place, and you will find that exactly what we are trying to reframe here will actually expedite your system.
Ms. Illingworth: I agree with Sue's comments. We would love to see some sort of advocate or support worker who stays with the victim from the beginning through to the correctional system, because the crime is not over if and when someone is sentenced to the prison system; it continues as they serve their time for their crime. We think that it's absolutely valuable to refocus on preventing crime in the first place: let's have fewer victims coming into the system and focus on those offenders who are the most problematic. We ought to expend our police, corrections and justice resources on those kinds of cases and try to keep those who we can out of the system to achieve a reduction in the backlog that we see right now.
Senator Jaffer: In the Minnesota model, the victim's advocate arrives in the police car at the same time as the police and stays with the victim throughout. That is exactly what you are saying.
[Translation]
Senator Dagenais: My first question is for Ms. Illingworth. Your services may not be used by all the victims, but you do meet victims, and I would like you to tell us about their relationship with Crown prosecutors and about the information they receive. I would like to know the same when it comes to police officers.
As you know, I was a police officer for many years. Unfortunately, we were too few at the office, and we did not have the time to contact the victims or ensure a follow-up on their file. We had to deal with call after call.
I know that there are not many prosecutors and that they are overburdened — at least in Quebec. I am not sure they always have the time to call the victims. You meet victims. Given what they now know, after going through such a long process, do they sometimes regret filing a complaint? Do they tell themselves that, had they known, considering all the delays and the entire process, they may not have pressed charges? Have you heard such reactions?
[English]
Ms. Illingworth: Yes, we do, especially in cases of sexual violence. That is particularly where there is a hesitation to come forward at all and a hesitation about entering the criminal justice system because of the response of the police or the questioning they will face by defence counsel. Publicity is also a concern.
There definitely is a hesitation. Sometimes we have heard regret, too.
For the most part, especially in the last 10 years since I have been at my office, I think we hear more positives from victims about police response and criminal justice court response. I think there has been an increased awareness of victims and an increase in trying to serve and support them as they go through this difficult process.
I would say that I hear fewer complaints, but the most complaints definitely come from cases where women have been victimized by sexual assault.
[Translation]
Senator Dagenais: Ms. O'Sullivan, how responsible is the shortage of human or financial resources for the lack of communication with victims? Is there anything the government could do to improve the situation? You will probably tell me that more resources would help. However, although it sometimes seems obvious to me, what could be done to improve the lack of communication with victims, something you are not necessarily responsible for?
[English]
Ms. O'Sullivan: From a federal level, there are now monies that have been put in place to support provinces, territories and communities for the new Canadian Victims Bill of Rights. This is a huge opportunity to access — and I would say that the federal government could help by making those monies available to implement those practices that will support victims.
Everything we are talking about here is along that continuum from the time of the crime and throughout. It is about making sure they have the information, as Heidi just said, to make those choices.
One of the things Ontario will be putting into place is providing free legal advice to victims of sexual violence. That is just a recognition of its importance. In Norway, if you have crimes against persons, you can see a lawyer and the state will pay for that. As everyone knows, here the Crown does not represent the victim.
So it is by providing that kind of information that it allows them to make that choice. Then, when they make that choice to participate in the criminal justice system, they know that along that continuum, they will be supported, informed and respected.
If we could ensure that the federal government ensures that the money is there to assist the provinces, territories and communities to implement those supports that are necessary, that is important.
As you know, there are some examples where high amounts of expertise are available. However, capacity is always an issue. As many of you from the North know, regarding the limited capacities, recently it's been announced that there will be money for federal prosecutions to have support workers to help. That is absolutely necessary to support.
Senator Joyal: I was struck by the reference you made to the pilot projects in Wales and England. Do you have any idea how much it cost to put those pilot projects in place?
Ms. O'Sullivan: I don't. The evaluative study was in 2004. I referred to it because there is little available in terms of data and evaluating that impact. That is one that we did find. It basically highlights what we know is going on. As Ms. Illingworth articulated, when you have a sexual assault victim who will have to make that decision to testify, you can imagine the kind of impact that has on them — to know they have someone there to support them. What are those expectations? How do I prepare? We have court witness programs that — some of them will even have virtual tours if you want to tour a courtroom — will provide that support and ensure they understand things like criminal injuries compensation, restitution, et cetera.
The more we can prepare witnesses — because many of these vulnerable victims' testimonies are needed for the court cases — the better we are able to support them and allow them to give that testimony. That means that the criminal justice process should be expedited in the sense that you will have that data showing more witnesses willing to participate in the criminal justice system.
Senator Joyal: To my recollection — and I might be wrong — you have never mentioned such a pilot project in your annual report, have you?
Ms. O'Sullivan: This isn't my research. No, this isn't in any of my annual reports. This is research we just came across to look at.
I was recently speaking with the National Crime Victim Law Institute in Portland who does a lot of work around this. Data is something — and thank you for raising this; I read through the transcripts — that this committee wants. We need better data.
I'm happy to tell you that our office has partnered with CCJS at Statistics Canada, and we are finalizing working with them on a feasibility study where we are data-mapping victimization data. It should be completed shortly. This feasibility study maps what data we have that police gather, data through the court process and data in the federal round. We have 7,600 registered victims. We have been working with them; they have been doing the consultations across the country, with everything from academics, key national organizations, victims, NGOs — those kinds of things.
That data will look at what information to gather and what information you want to have, so we can start to input some and have a look at what the actual impacts are.
That information is something for which we partnered with Statistics Canada, and it should be available in a few months. We will have recommendations coming out of that, which I will be happy to share with this committee.
Senator Joyal: Could you enquire and get additional information about the No Witness, No Justice project — how much it cost — so that we have an idea? This is an important element, in my opinion. Maybe we could follow suit on what I call best practices. If you can provide the committee with that later, it would be helpful.
Ms. O'Sullivan: I will certainly attempt to get as much as I can. But I will say that I included it to highlight that much of this work is going on in our country. I use this data to say why it is important that we continue to do that work and put in place those proper support systems.
Another one that I think is an excellent example in our country of assisting vulnerable victims is the Child Advocacy Centres. I had an opportunity to visit Sheldon Kennedy Child Advocacy Centre in Calgary, and see the work that is being done there in terms of a cohesive, wraparound — helping the vulnerable victims and their families, but also ensuring they can go through the criminal process and receive, at the same time, the support they need to do that.
Those things are already going on in our country but not consistently across the country because of capacity, resources and some of the realities of our remote communities with access to some of those.
I used that to highlight how important it is that we continue to put those services in place. It will help us expedite the system.
Senator McIntyre: Thank you both for your presentations. As you know, the Canadian Victims Bill of Rights came into force in July of last year. The bill provides for better information, protection, participation and restitution for and to victims of crime.
In your opinion, has the situation improved since the enactment of the bill?
Ms. O'Sullivan: Since the bill was enacted — and as everyone is aware, there are still pieces of the bill yet to come into force through an OIC, particularly in relation to the Corrections and Conditional Release Act — I have had the privilege of attending victims' conferences in Alberta, B.C. and other places where they invited me to speak, but I got an opportunity to attend and see what the different provinces are doing.
I can tell you that I'm heartened by what people are putting in place at the provincial level. A significant amount of work has been done to produce information that they can provide to victims on what their rights are, what support services are available, these kinds of educational opportunities that bring the different participants of the criminal justice system together with victims. I've had an opportunity to participate in two of the recent Ontario symposiums they've done with sexual assault victims. There is a huge mobilization on this. Obviously, I can't speak for the entire country; I've had an opportunity since then. We are hearing from victims that people are considering these.
I think the bill of rights is making a difference. It's not just about legislation; it's about the mobilization and sensitization of the key participants as well. That is happening. I recently spoke with Gillian Blackwell, the director of the Policy Centre for Victim Issues. Everyone is aware that there's a federal-provincial-territorial working group for victims; they met recently, and they're exchanging, at the provincial and territorial levels, all the best practices at that committee as well. I'm heartened by some of the progress that's occurring, but we still have a ways to go.
Senator McIntyre: Ms. Illingworth, as you indicated, too often in our criminal justice system, charges are stayed or withdrawn, specifically pursuant to 11(b) of the Charter. In addition, many criminal cases are resolved without a trial, most often because the charges are withdrawn or a guilty plea is negotiated.
My question is this: Generally speaking, are victims and complainants consulted before a prosecutor withdraws charges or accepts a guilty plea? And whether they are consulted or not, can you describe the impact this is having on victims, complainants and other witnesses?
Ms. Illingworth: I would say that I hear less and less at my office of complaints that victims are not being consulted in advance of Crowns making decisions.
Senator McIntyre: That's a positive step.
Ms. Illingworth: Yes. When I first started, back in 1999, I would say that I would hear a lot more complaints about a lack of communication from Crowns. There's been a definite improvement. I think the Canadian Victims Bill of Rights has raised the awareness right across Canada on the front-line, at the policing level and in the courts as well, of making sure we're giving victims the information they need to participate and understand the process. I would say that it is absolutely devastating if they're not consulted. You never want to find out something very significant about your case; you've been harmed so personally you never want to hear about it after the fact. I think that, for the most part, our victims' services working in the courtrooms with victims, or police-based victims services that do that work along with the Crowns, are doing a good job.
Senator Batters: Thanks very much. I'm wondering, Ms. Illingworth, if you could please tell us about a situation where you personally dealt with a victim where some really serious criminal charges were stayed against an accused because of court delays.
Ms. Illingworth: I haven't had anybody at my office who has been through that. In a case involving one of my former board members, charges were stayed against the accused. It was her husband, actually, who was killed. It was a small First Nations community in Saskatchewan. He was to keep good behaviour for a year, and then they were going to withdraw the charges. In that case, that's what happened to her, but I don't believe it was because of delays in the criminal justice system. It was just a decision that the Crown thought would, sort of, steer that person out of the criminal justice system.
That was a very traumatic experience for the family, because he returned to the small community where they all still lived, so they saw him every day. I don't believe he made it through the year. There were additional charges brought against him for another crime.
I don't have a specific one for delay.
Senator Batters: I have something else to ask. I'm wondering if, then, you could tell us about the reasons why victims of sexual crimes are particularly affected in their testimonies and their situations when there are court delays dealing with fading memories, lost evidence and that sort of thing.
Ms. Illingworth: Yes. I think that's the significant challenge of the system, if we're taking three to four years to get to court. In some cases, with sexual violence, victims are coming forward many years later. This leads to people, maybe, not remembering exactly the statement that they made to the police, which brings up issues in the courtroom and opportunities for the defence to be able to attack the complainant's credibility. It's difficult, and it's very complex. The sooner we can expedite these processes, or maybe use technology to help, such as videotaped statements, and playing those in court, that might be helpful to address those problems.
Senator Batters: Ms. O'Sullivan, I'm wondering if you could answer this one. Court delays obviously contribute to lost days at work, depression, suicidal thoughts and overwhelming floods of emotions for victims of crime. Could you tell us more about the economic costs for victims when court delays occur?
Ms. O'Sullivan: I think, just in general, you've heard me say this before: 83 per cent of the costs of crime in this country are borne by victims. When we are here discussing delays and costs in the criminal justice system, I don't want us to lose sight of who is actually paying the biggest cost of crime in this country.
I have heard from many victims about the financial burden on them when they go through a lengthy court process. We haven't even talked about, say, if your loved one is murdered in another province, and the lack of support, and the cost it takes you to go there.
We've heard of lengthy trials. I had one victim who had four different offenders involved in the trial and it went on, and he said, "I'm lucky. My employer could accommodate me.''
Think about the length of some of these trials. I had one Mom who said, "I'm lucky enough to get 30 counselling sessions paid for, but it's been 18 months, and I haven't reached pre-trial. How much should I save for the trial?''
The reason I'm so passionate about why it's important to support victims and why it will expedite the process is that, at the end of the day, this is about confidence in our criminal justice system. If you're constantly coming to court and it's being adjourned, you get that frustration: Is the system working? Am I going to be heard? Am I going to have my opportunity to have this?
And the costs to victims who are going to have to get up on the stand and talk about what happened to them, particularly in a vulnerable situation such as sexual assault, that is huge. If you've had any training around trauma- informed, you know what happens when someone is traumatized at the time of crime and how that impacts memory.
There are people in the criminal justice system who haven't had that training, and that's why I'm talking about why it's so important to have the people in the criminal justice system understand the importance of support. In many cases, their testimony is your evidence.
[Translation]
Senator Boisvenu: Thank you for your testimony, ladies.
A rather eye-opening article that appeared in the March 20 edition of L'Actualité followed up on the analysis of the study on victimization carried out by the Department of Justice, I believe in 2014. The article states that the victims surveyed apparently reported 600,000 sexual assaults in Canada last year and that only 1,800 of them resulted in convictions. This means that only 3 in 1,000 victims of sexual assault in Canada have obtained justice.
I am very happy that the committee is looking into the issue of delays, but I am very pessimistic. When I hear the Quebec associate chief judge say that justice will soon hit a wall, I understand she is saying that victims have lost confidence in the justice system. Fifty percent of victims drop the charges during the proceedings because of delays. We can see that our justice system has reached a point where it shamelessly favours criminals. The system is no longer there for victims.
Ladies, what changes do you think we could make, and where should we begin in terms of restoring victims' confidence in our justice system? There were apparently 600,000 assaults, and just 20,000 victims filed a complaint with the police. That makes absolutely no sense.
[English]
Ms. O'Sullivan: Many of you would be aware that the General Social Survey for 2014 was released in November 2015, just last fall. What I think is a concerning statistic is that 10 years ago, only 8 per cent of victims reported sexual assault. It's down to 5 per cent in the most recent release. I think that speaks to what we're talking to here at this table.
To answer your question, if a victim is going to report a crime — make that choice to report a crime — they have to have information. We talked about something that has huge promise in Ontario — having the free legal advice for victims. It's not representation but advice. They could then be informed about what it means to come forward.
There are other examples that I used — the one in Norway, as well. They are supported from the time — whether they report or not, supports are available to them. Should they choose to report and enter the criminal justice system, there is — Senator Jaffer spoke about this — a navigator or support worker. Someone is there for them, to support them, to help them navigate through that system. They have rights.
What's going to happen when I go to court? What are my expectations when I have to give testimony? All these things. The better informed and supported they are, the better they're going to be able to navigate that system and be more willing to participate in that system.
The research that's done — we call it procedural fairness. When we look at the research on this, regardless of the outcome, this research says that if they are supported — they may not be happy with the outcome; that's a given; we've all heard that — but the fact that they are supported, respected and treated with dignity throughout that system, they're going to be more satisfied with it. That is a huge piece of what we're talking about here today. It is not just about the delays.
A lot of the things we're talking about here today have to do with start at the beginning, preplan, have these things in place — that they have information. A lot of the frustration with the system for victims is because they don't have the information they need as they go through. When is the next court appearance? We don't know yet. Or I show up, and it's been adjourned — "Did someone not tell you that?'' You could be outside the courtroom for three days, not knowing when to testify.
These are the things that have to be in place if we're going to have that confidence in the system.
The Chair: A quick question: Ms. Illingworth, you referenced preliminary inquiries in your opening statement. We've had some testimony with respect to the lack of need for preliminary inquiries — perhaps if not eliminating them, severely limiting the need for preliminary inquiries, because the disclosure function has been overtaken by Stinchcombe.
I'd like to have both of your views on it, and comment on the impact it has on witnesses. Preliminaries are used to test witnesses twice — or test them prior to the actual trial — and being abused by, primarily, the defence bar. I'm wondering what your experience has been with your organizations, and if you have any recommendations for the committee with respect to the need for preliminaries.
Ms. Illingworth: I would say that I have concerns, especially here in Ontario, about the fact that if victims are in the Superior Court of Justice, I believe they often have to testify twice. This is very stressful and intimidating. It causes so much anxiety for people, especially children who are affected by sexual abuse and for sexual violence survivors. The process is intimidating enough, but to have to think about going through twice is very difficult.
I'm not a lawyer or a legal expert, so I don't think I can comment on the need for preliminary inquiries, other than that I see that it adds to the delays we see in the justice system.
The Chair: It has additional impact on victims. Ms. O'Sullivan?
Ms. O'Sullivan: I've read the transcripts. You've had eminent legal experts here, and there's no consensus among them. I would echo Heidi's sentiment about anything we can do to reduce the amount of time a victim has to testify. However, I defer to the legal expertise that has been previously called as witnesses.
Senator Joyal: I'll ask you what might be a naive question. Suppose I were a victim and I were waiting, say, two years before I have any procedure initiated. What would I do? Turn to you, as a federal ombudsman, and ask you to take up my case? Would I knock at the door of the Crown attorney to say, "What are you doing with it?'' Would I lodge a complaint under the new victims' rights bill? Would I call a press conference to try to attract media on my case and make it dramatic?
What is the recourse for a victim that is in that situation? Unless I want to hire a lawyer at great expense to try to — I don't know what. What do you do when you're a victim in such a situation?
Ms. O'Sullivan: That's actually a very practical question, because victims don't know the answer to that.
First, as a federal ombudsman, the administration of justice is done at the provincial and territorial level. So I take complaints directly through federal programming initially, so it wouldn't be my office. I will say this: To anyone who contacts my office, we will get them where they need to go.
I'm going to go back to this piece about ensuring victims are informed. We've highlighted — and I've read the different testimony of different people about the lengths of time it takes to get to trial. I know Quebec seems to have a few more challenges around that.
If you are a victim in a court case that's taking a lengthy period of time, if you are kept informed on a regular basis about what the process is and about where you are in that process, you may not like that it's taking a longer time, but you certainly need to be informed of that and not just get a phone call 18 months later that says, "We're ready to go to trial now.'' To me, that doesn't make sense. If we want a witness to testify, you're going to keep in touch with them.
I make these comments recognizing there are many investigators and Crown attorneys who do keep their victims informed, be it through the court witness program, be it the prosecutor themselves or the investigators themselves, particularly with crimes against persons. It doesn't make it any easier.
One of the things our office does is we take these issues and we come to tables, such as this committee's, to amplify the voices of the victims we have heard. This is one opportunity. We have victims who contact our office to identify systemic issues. We do reviews at the federal level of systemic reviews of different things we see happening.
But on something like this, we are talking about the administration of justice and the practical application at the provincial and territorial level.
Senator Joyal: If I would have been a victim of crime, my first reaction would be to get over it, to solve it and say life should go on and try to start another chapter and another life. The more you are prevented from going through that psychological barrier or door, the worse you are as an individual in terms of being caught in the trauma that crime might have inflicted.
Ms. O'Sullivan: Victims would like the right to a speedy trial, as well. Exactly.
I know Senator Dagenais spoke about the workload of different people in the criminal justice system. I talked about it briefly in my opening, but I will make this statement again: This is not intended to replace investigators or Crown prosecutors and their responsibilities and roles. But we are seeing more technology being used. For example, the United States have something called SAVIN, the Statewide Automated Victim Information and Notification. You can push or pull information. Some victims would like to be able to pull it, so that whatever the law says you can have access to, they can then, with a secure login, check this information themselves.
There's a system that's being piloted and running in the U.K. called TrackMyCrime. That allows victims to access and speak through that — again, it's not intended to replace investigators. It's an added tool. I know they are looking at taking TrackMyCrime to the court level. Can you imagine if you're a victim and you just want to check to see if your case is still going in that courtroom? Again, we recognize that some victims don't have technology or computers, but it's a tool that could be used.
In the Netherlands, they're currently developing a victim online account, aiming to look at bringing from-time-of- crime-through information, including crime compensation.
Correctional Service Canada will have their web portal up and running within a year or in the near future. Saskatchewan is revamping and looking at they're integrated justice management system and incorporating some of those. I want to say Halifax — and we're looking into this. Through the court, they can generate notices around victims' rights.
Looking at technology as a support tool will be helpful in keeping them informed as well.
Senator White: Thanks to both of you for being here. It's good to see you again.
When cases are tossed out because of timely trial issues, they often look to the Crown and police and lay blame, which is typically fair. But there's never a discussion around fairness to the victims. The victims really could have had nothing to do with the reason that the case is tossed out.
We do concern ourselves with what the police do, what the Crown does and what the accused has done in the court, but we never actually take into consideration that this isn't fair for the victims. As we go through this, do you see that we should be making recommendations that that has to also be a consideration when that's really who is impacted most?
Ms. O'Sullivan: Thank you. Yes. Thank you.
Senator White: We're good. Thanks.
The Chair: Thank you both again. We always appreciate your appearances before the committee and the contribution you make to our consideration of the matters before us. We very much appreciate it.
The Chair: For our second hour we have, from Victimes d'agressions sexuelles au masculin, Alain Fortier, President; and Frank Tremblay, Vice-President.
Gentlemen, we are looking forward to your presentations, and those will be followed by questions from the senators. Mr. Fortier, I gather you will lead off. The floor is yours, sir.
[Translation]
Alain Fortier, President, Victimes d'agressions sexuelles au masculin (VASAM): Good morning. Thank you for giving us the opportunity to appear before you today. I will begin the presentation, and I will then yield the floor to Mr. Tremblay.
My name is Alain Fortier, and I am the president of Victimes d'agressions sexuelles au masculine (VASAM). I was also a victim of repeated sexual assaults by two assailants, starting at the age of 13. I reported my first aggressor, but I decided not to press charges against the second one. It is a pleasure and a privilege for us to be here today to participate in this study on delays in our justice system.
Why did I not report my second aggressor? It's simple: the justice system is a hell — believe me, this is not an exaggeration for victims — largely because of lengthy delays. I pressed charges in June 1991, and the final verdict was rendered in June 1996. That's a five-year delay. My colleague Frank pressed charges in December 2008, and the final verdict was rendered in February 2012, so four years later.
We have provided support to other victims, and I will give you two examples. The first victim was 13 years old at the time. He had pressed charges in March 2011, and the verdict was handed down in February 2016. That is another five- year delay. The second victim pressed charges in September 2010, and the sentence will be pronounced in May 2016, with a six-year delay. We don't know whether this case will be appealed, so we are talking about a minimum of six years.
So let's go with a five-year average. Why are the proceedings too lengthy in Quebec? Among the reasons are the repeated requests for postponement by the accused, the reluctance of judges, the pre-trial hearings that prolong the proceedings, a justice system flooded by repeat offenders and insufficient staff — police officers and Crown prosecutors are often mentioned.
If we can make you vicariously experience over the next few minutes what we went through, we will have fulfilled our mission. I have been working on myself for a number of years to reduce the impact of the sexual assaults on my life. Despite this, I can tell you that, everyday — each and every day — I think about my experience. It is and will always be part of my life. Fortunately, with hard work, the emotional strain caused by the sexual assaults is decreasing.
Can you imagine a child waiting five years to move on to something else? To give you an idea, it's as if the child spent five years living in a perpetually cloudy world with an occasional ray of sunshine that lets them believe in a better life. Five years is a whole lifetime for a child.
We have to prioritize our children's security and well-being, and that necessarily goes through shorter delays in our justice system. How can we do that? A maximum delay of 12 to 24 months should be established for all legal proceedings and a fast track system should be used for those types of crimes.
Thank you.
Frank Tremblay, Vice-president, Victimes d'agressions sexuelles au masculine (VASAM): Good morning, everyone. My name is Frank Tremblay, and I am the vice-president of VASAM. I was also assaulted more than 80 times by a priest when I was 13 years old.
The consequences of the endless delays in the justice system are too many to name. Alain and I have experienced various aspects of that, including repeated absences from work, job loss, bankruptcy, separation and divorce. I am mostly referring to sexual assaults experienced in childhood, as that is the type of situation we come across most often, although older people also turn to our organization. In the case of children, among the consequences are problems in school, isolation, depression, substance abuse and addiction issues, and an inability to heal in therapy when they cannot erase traumatic memories. I should point out that it is very important to preserve our memory in order to be credible during proceedings. That is pure psychological torture for the child, as well as for them when they reach adulthood.
Alain talked to you about some of the delays in the justice system that extend to over five years. What is a five-year period? For all of us here, that may represent a mortgage term or a car payment, but for an 8-year-old girl, it's her entire life, as we generally do not remember the first three years of our lives. A little 8-year-old girl who reports her aggressor today will be 13 years old at the end of the court proceedings she will have gone through. That 8-year-old is in third grade and she is a little girl. At 13, she is in the second year of high school and she has her period. She is at a completely different stage of her life. Asking her to testify on what she said at the age of 8 is torture, a hellish experience, for her.
Five years for an adult who reports a sexual assault suffered in childhood is just as horrible. It is a misconception that an adult who testifies as a victim in a trial for sexual assault committed in their childhood is an adult. Based on my personal and professional experience, I can tell you that nothing could be further from the truth. When an adult testifies on facts from their childhood, a child is talking and a child is experiencing tremendous emotional strain, as they kept silent their whole life.
In conclusion, it is important for me to make you aware of one thing: long delays in our justice system only benefit two individuals — the criminal and their paid lawyer.
[English]
The Chair: We will begin our questions with the committee deputy chair, Senator Jaffer.
Senator Jaffer: Thank you very much. We very much appreciate your presence here today.
We have heard from you before, and every time you come, I feel that you are very courageous to do this. You help a lot of people. I know I speak for all my colleagues when I thank you for being here.
Today when you were speaking, I was thinking the question I really have for you is this: When you were going through these challenges, what could have been in place that could have helped you? Now that you have been working on this issue, you have an even better idea. What do you think there should be in place to help victims, especially around court delays? I am asking both of you.
[Translation]
Mr. Fortier: When I took legal action, in 1991, I had no support. That is for sure. I filed my complaint, which followed its course, and I had no news. Once at the trial, I had to follow a pace that was not my own. At the time, I could not benefit from the assistance provided by crime victims assistance centres, CAVACs.
Nowadays, in Quebec, CAVACs provide victims with some support. They accompany them and support them throughout the process. The support provided is great and really helps victims. However, those people have no power to accelerate the proceedings or try to make things happen. The support is very important, but we absolutely have to find a way to reduce wait times in our justice system. That aspect has become important.
To give you an example, every time a victim receives a letter from the bailiff indicating that they must appear on a specific date, they start to go through the emotions attached to the sexual assaults. The victims receive the bailiff's letter two to three weeks before the trial begins, and they start getting anxious and having nightmares again. When it's time to appear in court, they are stressed out, defeated in advance and, all of a sudden, they are told that the trial has been postponed, often without even being told why. That is very traumatic for the victim, and it is enough to discourage many of them.
More and more victims will enter the justice system with that support, and this means they will be fully involved in the proceedings. However, when a victim begins the process without being ready, they might withdraw their complaint because they have gone through real hell. In short, the support is improving.
Mr. Tremblay: What would help the victims the most? Reducing the delays. When we see a child in need, we do not hesitate to help. However, in our justice system, that child must go through the same process as everyone else. I would prefer the 40-year-old man suing his former associate for fraud — and I am not saying that delays should not be reduced in their case — to appear tomorrow morning. This evening, I would like the case of the child or the child in an adult's body to come before the court. When it comes to sexual assaults, it is immoral to make children wait three to five years.
It is also important to remember that defence lawyers know all about the memory game. Memory is the reason why an individual charged with a criminal offence will be acquitted, beyond reasonable doubt. When a 7-year-old child is interrogated and, after a 3-year delay, they are asked the same questions, we know that plays with their memory. I know that on a personal level. In therapy, my psychologist — who had 33 years of experience — clearly warned me that, if I wanted to wipe the slate clean and stop suffering, certain elements could not be discussed with her because I would erase them from my memory and experience the consequences during the trial. That means that victimization is being increased by telling the suffering individual — the child or the child in an adult's body — that they have to wait until their trial ends to do a proper cleanup, to stop suffering, because if we dig in there — With her many years of experience, my therapist knew that some elements of therapy could erase parts of my memory and that my credibility could be affected. Victimization is increased by preventing treatment owing to delays. The delays absolutely have to be reduced.
Senator Dagenais: I want to thank the two guests for being here. I understand that it is difficult to file a complaint when the assailant is a family member, someone close to you, or a hockey coach. In your case, Mr. Tremblay, it was a priest you were surely familiar with. When a complaint is filed, people sometimes try to blame the victim. In some cases, charges are withdrawn or negotiations are conducted for a guilty plea. When the Crown prosecutor and the defence attorney begin negotiations nowadays — I stopped being a police officer five years ago, after all — are the victims, or at least the complainants, informed or do they learn about it later?
Mr. Tremblay: Not unless the victim takes the initiative to call the Crown prosecutor. In my trial, I had a great collaboration with a Quebec City prosecutor who was amazing. However, that is not always the case according to some. Many people say that they do not know why certain proceedings will not be taking place. I heard this three weeks ago from a lady whose 10-year-old daughter was assaulted at the age of 8. The preliminary hearing was held on March 15, last year. She told me she did not understand. Having gone through all the stages of the justice system, I explained the situation to her. I think it is unfortunate that this woman had to turn to us for answers. She told me that the Crown was not in touch with her. The Crown does not have an assistant; it does not have the time. Police officers are overburdened. I have a great deal of respect for police officers, but they are overburdened. They are dealing with endless investigations and proceedings that are constantly being postponed, especially in Quebec because of repeat offenders. As a result, cases are not moving forward. People who are in charge of providing victims with information on the proceedings do not have enough time. It is not a matter of bad faith.
Senator McIntyre: Thank you for your presentations, gentlemen. In its work, does your organization distinguish between a complainant and a victim? Does a complainant become a victim as soon as the accused is found guilty of the charge brought against them?
Mr. Fortier: We don't make a distinction between complainants and victims. Generally speaking, the people who reach out to us are victims. But not everyone initiates legal proceedings. Men, in particular, have a harder time because of the taboos. To answer your question, we don't distinguish between complainants and victims. Our mandate is to assist and support all victims.
The first time I meet with a victim, I always tell them that, if they choose to bring proceedings, what matters most is not necessarily the outcome but, rather, the step itself. They must not expect to get a conviction. It's not easy to explain that to someone. I went through it myself. In the case of my second abuser, I asked my spouse whether she was willing to embark on a process that would turn our lives upside down for five years. That's a tremendous burden. As I see it, the victim and the complainant are one and the same. It's important to provide assistance and support, and to refer them to the appropriate resources.
Senator McIntyre: By all accounts, victims' rights have been trampled upon and ignored for years, hence why the committee is studying the issue now. Do you have any recommendations for the committee in terms of how the federal government can reduce delays in criminal proceedings in order to lessen the impact on victims and complainants?
Mr. Fortier: We aren't the best people to comment on the various components of the legal system. It would be nice, however, to have an option where cases involving sex crimes against children could be fast-tracked and dealt with on a priority basis, within a prescribed time limit. If we wait for Quebec to come to the aid of victims, we'll be waiting for quite some time. In our view, the federal government should limit delays and the duration of proceedings. As I mentioned earlier, in terms of a maximum time frame, the period it takes to go through all the steps in the legal process should not exceed 24 months. While still long, it's a more reasonable length of time for the accused.
Senator Boisvenu: Welcome, gentlemen. The problem stems from the fact that the federal government comes up with the recipe but the provincial government is the one making the cake.
The statistics show that sexual assault is the only type of crime that hasn't declined since 1999. Since 2008, assaults against children have gone up by 150 per cent. I agree with you. When an adult who was sexually abused at 5, 6 or 7 years of age reports their abuser, they are confronted with endless delays. The more time goes by, the weaker the person's memory, which is already hampered because of the post-traumatic shock. Our justice system isn't designed to help victims who come forward after the fact. It's tailored to crimes in which offenders are virtually caught in the act.
Mr. Fortier, I'd like to come back to your fast track idea. If we give child sex assault cases priority, other cases that are sitting in the middle or at the bottom of the pile will obviously suffer. We would be keeping delays in cases involving one type of crime under control while contributing to longer delays in other types of cases. I'd like you to elaborate on that idea, since you have first-hand experience with the justice system, whereas we are on the outside looking in. As a victim who has had to deal with the deficiencies in the system, I'd like to hear your thoughts on the changes that could be made to improve it.
Mr. Fortier: The worst are the adjournments — when you show up in court only to have the case adjourned to a later date. Would it be possible to cap the number of adjournments allowed? Would it be possible for judges to show genuine consideration for the victim by deciding that the case had been delayed enough times and should move forward?
Sometimes judges like to be accommodating to criminals in order to give them a chance as well, but where does that leave the victim? I'll put it this way: I think judges are often unable to keep control over their courtrooms.
I agree that victims of other types of crime should take a backseat to victims of sexual assault. What I mean by that is there are two types of crimes: those committed against someone's person and those committed against property. Generally speaking, cases involving property crime can wait. But crimes against an individual's person take not just a mental toll on the victim, but also a huge financial one. We've seen cases where male victims became separated from their spouse or were no longer able to work once they began to speak about what happened to them. These crimes take a tremendous financial toll.
When a man or any victim begins to talk about the abuse they experienced, it can be likened to shaking a bottle of Pepsi and then opening it up. That's what the effect on the victim is like. If the system can't assist and support victims through the ordeal within a reasonable time frame, then I would say it is hurting victims rather than helping them.
Mr. Tremblay: It's like screwing the lid right back on that shaken bottle of Pepsi you just opened and telling the victim that they can't let everything inside them come pouring out right away because it is going to be a drawn-out process. What can the government do to reduce delays? Are all the steps really necessary? I can tell you that, in my case, the criminal trial was delayed numerous times. My abuser said he wanted to take part in the preliminary inquiry. Up to a week and a half before the hearing, I was expecting to testify. My memory may be a little off, but I believe it was the Friday before the Monday that the preliminary inquiry was scheduled to begin when I was told I would not be testifying. That was fun. We may be adults, but we have a child suffering inside. I have seen enough grandfathers in tears as they explain that they don't stop being a child simply because they have grown into an adult's body; they remain a child on the inside, as we all do.
Is the preliminary inquiry really necessary? My abuser used it to his advantage. Everyone showed up in court, and the morning of the preliminary inquiry, he said that he was waiving his right to a preliminary inquiry. Okay, great. That means that a trial date will be set. That's all. But my abuser benefited from a period of five months, finding a way to drag out the proceedings. What's more, the preliminary inquiry wasn't supposed to last two hours. So, again, my abuser benefited from a significant delay. The preliminary inquiry was supposed to take longer, two to three days, but given how difficult it is to find three free days in a judge's schedule — three hours would be easier — my abuser got another six-month delay. Had my abuser said, from the beginning, that he was waiving his right to a preliminary inquiry and that the trial could move forward right away, things would have been different for him and for the 13 men who had filed complaints against him and knew they would be called to testify. It was very upsetting. Is this step really necessary? Get rid of it.
When it comes to children, yes, they should be given priority. Anyone with children will understand what I mean: when you are hungry, you let your child eat first, and then you eat what is left. Well, the same principle applies here. It may sound trite, but you take care of children's needs first, and then you take care of adults' needs. That's how I am with my children. And if they should ever have the misfortune of navigating the justice system, I would want them to be treated exactly the same way. If something were to happen to my children and they were to seek justice today, they would be treated the same as victims of any other type of crime.
Having gone through it myself, I will say that the police officers I met at the regional investigation office in Quebec City — who were very dedicated and for whom I still have great respect — told me that the process would be long and boring because they had to give priority to cases involving bloodshed and because there weren't enough officers.
Senator Joyal: Welcome, Mr. Fortier and Mr. Tremblay. Would you say that those working in the system have the perception that many of the cases of sexual assault against children involved colleges, residential schools and other educational institutions, particularly in Quebec, and that, because the victims have already waited so long for justice — often well into adulthood or their senior years — what's another year or two? Is that perception out there? That's more or less the impression we get from media reports on child abuse cases involving various church organizations.
Mr. Tremblay: Absolutely.
Senator Joyal: So would I be wrong to say that delays are almost the norm in those cases?
Mr. Tremblay: No, not at all.
Senator Joyal: That's really what goes on?
Mr. Tremblay: Yes, that's the way people think because it happened so long ago. If the abuse occurred 24 years ago, victims can easily expect to wait another year. But remember that shaken Pepsi bottle; once you start pouring it out, there's no going back. You can't get the toothpaste back in the tube. It's hell.
To understand why this issue is so important to me, you would have had to see me nine years ago. I would have denied everything, even in front of the 200 people at school and my abuser. I would have denied it all through the torture of the abuse. I even thought those who came out publicly to talk about the sexual abuse they had suffered were stupid; I wondered why they would say all that publicly. I was in total denial because of the shame I felt and everything that went with it.
The average person can't wrap their head around that: unless you've experienced something for yourself, you can't understand it. Just consider a woman who has given birth; all the explanations in the world would have made no difference until she had gone through it herself. She had to experience it for herself to really understand.
Having lived it, I understood the havoc it wreaked inside me. But the average person will wonder why the victim didn't come forward sooner since it happened so long ago. Because they weren't able to. Because it was too painful. I watched my life completely fall apart as I went through post-traumatic shock. Beginning on May 21, 2008, I had five nightmares every night for months, and, in those nightmares, I would kill people. I wasn't dreaming about my abuser, either; I would dream about killing someone from my past who I hadn't seen in a long time and about getting caught. It got so bad that I was afraid of going to sleep and waking up in the morning. I was convinced that I had killed someone I had known. At the time, I can remember telling my wife that I was sure I had killed someone at some point in my life.
All of that happened because I was sexually abused at the age of 13. We are told not to go there, not to set off the bomb. Or we are told that it's too embarrassing because we are men. If you had an erection or you ejaculated — let's call a spade a spade, after all — you are guilty. As soon as it happened to me when I was 13 years old, I told myself that it was over, that I could never talk about it, that no one would ever believe me because I enjoyed it. What's more, my father thought I was strong back then. So I thought that if I told him, he would say to me that all I had to do was punch the guy, beat him up. As a child, that's what went through my mind.
It's so hard, and even more so for men, mainly because of the physical elements surrounding the actual assault: the pleasure factor. Women experience the same phenomenon. Some female rape victims have told us that they experienced pleasure during the assault and that they felt absolutely awful because of it. Men have told me that they couldn't admit to the fact that they had had an erection, shocked that they were even telling me. Talking about it is freeing, but it's extremely hard. That's why it takes people so long to come forward, on average 43 years. The earlier you were abused as a child, the longer it will take you to say something. It took me 25 years.
So, yes, people think that you can wait even longer, but the truth is you can't because you feel like the little boy you were. When you talk about it, you aren't a man or a woman, you are just a child. We are talking about a child's mind, and I will give you an example. When I came forward, someone told me that your childhood home seems so big to you as a child but that when you go back 30 years later, it looks so small. As an adult, you have all your points of reference and the knowledge you've acquired, but you still see your childhood home as being huge.
In your mind, your childhood memories remain intact, along with your points of reference as a child. So many people tell me that they have only begun to realize that their mother must have known what was going on because they were a family of five living in a two-bedroom apartment. I know what that person means, and I burst out laughing because that's exactly what went through my mind. If you tell people the story, they can't believe it. It's awful. It's so hard, and that's why it takes victims so long to come forward. But the general public simply can't wrap their head around that. We need to spend some time dispelling popular myths and educating the public in order to help those who suffer terribly when they come forward as adults.
[English]
Senator Plett: Thank you, gentlemen, both of you, for being here and obviously speaking about things again that are very difficult to relive, and you have to relive these things every time you speak about them. As Senator Jaffer said, I also want to commend you for your courage in being here today.
Mr. Tremblay, at the tail end of your remarks, almost in the closing part of your remarks, you talked about the delays and that the only people that benefited from the delays were the offender and the defence attorney.
I would like you to elaborate a little bit on that and tell us: In your opinion, are the defence attorneys using those delays to get a lesser penalty? Are there statistics that show that if a trial lasts — and Mr. Fortier said the average was five years for these things to go through the courts. Are there more not guilty verdicts if it takes five years versus if we would get it through in a hurry? Are there any stats on that, for either one of you? Are the defence attorneys intentionally using these delay tactics to get lesser penalties?
[Translation]
Mr. Tremblay: The most important thing in any criminal trial for victims who testify is that time can undermine their credibility.
It all comes back to memory. Defence lawyers know full well that the longer a case drags on, the more stressful it will be for the victim called upon to testify. They have to prepare themselves psychologically, but oftentimes they aren't called to testify and, whenever they are supposed to, it doesn't happen.
My abuser did that to me when he pled guilty on July 11, 2011. Sentencing arguments were scheduled for October 28, 2011. Because I had read a scathing letter to my abuser on July 11, his lawyer stood up and said that he was reserving the right to question me during sentencing arguments. So I had to prepare myself. Sentencing arguments lasted a day, and I had to wait three hours before he stood up and said that he had no questions for me. I told the judge that I had been getting ready for three and a half months and that I wanted an opportunity to speak to him. It was devastating being told that I would have to keep my mouth shut because I had not treated him fairly by heaping scorn on him and explaining to him how his actions had affected me.
It's unbelievable. The tactic serves lawyers well and they know it. First of all, from a billing standpoint, they invoice for every bit of work they do. Second of all, their clients, the accused, know full well that the more time goes by, the more strained a person's memory becomes.
I can give you another major example. In the civil class action suit, the compensation was in the millions. The opposing counsel — there were three parties involved in the case — sought to notify my lawyers that they had found a world expert in the field of memory reconstruction in order to challenge my memory of the events. These kinds of psychiatrists can drive people to the point of madness; they know what madness is and how to incite madness in the minds of others. Meaningful representations were made. But by giving notice that they intended to bring in a world expert in memory reconstruction to scrutinize the validity of my memory, opposing counsel wanted to extract every bit of information they could from me because I had filed a civil suit on April 22, 2010. During the entire trial, which ended in the summer of 2014, I had to be ready to testify at all times.
The defence stated that they had recruited a world expert in the field of memory reconstruction. Memory is paramount in these types of cases, playing a central role. When I said that, in therapy, fragments of an afflicted person's memory are erased, it sparked reasonable doubt surrounding the facts of the abuse, including whether my abuser was standing at the foot of the bed or sitting down at the time of the incident. Defence counsel then points out to the victim testifying that, in their statement, they had said that the abuser was standing, that, during the preliminary inquiry, they claim that the abuser was standing. And now, here the victim is, two years later, claiming that the abuser was seated. Why does that happen? Because time has taken its toll, and so has therapy.
I hope that answers your question.
[English]
Senator Plett: Could I ask one quick question?
The Chair: I'm sorry.
I'm going to encourage our witnesses to try to tighten up their responses. I have a lot of senators who still wish to ask questions. I know it's sometimes challenging.
Senator Plett: We are almost through the list, chair.
The Chair: Senator Baker.
Senator Baker: Thank you to the witnesses for their excellent testimony. As always, when we ask that you appear, you give very important testimony to us.
My one question to you is with regard to a timeline you have set down in your testimony for which a trial should last. As you know, in each province the determining factor on whether a trial takes too long or not is the Court of Appeal. Since you've been referring to Quebec, it would be the Quebec Court of Appeal that is the law in the province of Quebec. Each province follows its own Court of Appeal as far as time periods are concerned.
Normally, as you know, it depends upon the complexity of the trial as to the period of time it takes. But you were on solid ground in recommending to us a time period, because the Supreme Court of Canada, in a case called Morin, set down definitive time periods for provincial courts and superior courts, from the moment of the charge to the time the trial began. As you know, the length of a trial goes from the time of the charge to the completion of the trial, including sentencing.
When you recommend a time period, you are within your right to do so within the law because that's what the Supreme Court of Canada has done. Are you setting a time period from the time the charge is laid until the matter goes to trial. The time periods that you've given in testimony today, do they apply from the time the charge is laid until the trial is finished? That's my question.
[Translation]
Mr. Fortier: Ideally, they would apply from the time the charge is laid. That would mean that, as soon as the charge is laid, a reasonable time frame should be set, and I do not say that from a legal standpoint, but from a victim's. From start to finish, a reasonable period of time for a victim would be, in my view, 18 to 24 months until the legal process is completely over. If the entire process took that long, I believe a victim could make it through the ordeal without too much difficulty and move on with their lives. The problem arises when a victim is told that the process is going to take five years because of court delays; as you can imagine, that discourages many victims.
We talked about the preliminary inquiry earlier. The sole purpose of that step is to give the defence a chance to gather as much information as possible in order to refute the victim's version of events during the trial. So doing away with the preliminary inquiry would shorten the process. And if police forces had special squads working on these cases, it would give rise to easier, quicker and more effective investigations. There is still much work needed on all fronts in order to expedite the process.
It would be much easier for the victim if they knew that, at the end of 24 months, the matter would be settled and they could move on with their life. That would make it easier to encourage victims to come forward. Right now, only about 10 per cent of victims come forward, so not very many.
[English]
Senator Batters: Thank you very much to both of you for coming here today. You've spoken about such personal matters and on such an important issue, and I really appreciate the courage that you've shown to do that today.
For victims of sexual crimes, I'm just thinking about those over the course of five years and the lengthy times that you've spoken about that these cases take to go to trial and all of those countless adjournments. I was thinking that every time you attended court, as a witness, you don't know what's going to happen. Hopefully, with things like the Canadian Victims Bill of Rights, there's more information provided to you. But I imagine you probably get yourself psyched up, and then you don't know if it's going to be yet another brief appearance and an adjournment to a time into the future; and then you have to go again, go through the same process every single time, not knowing what that particular court appearance is going to be like.
I'm wondering if you could explain a little bit more about how you felt through those types of situations, Mr. Fortier.
[Translation]
Mr. Fortier: The Victims Bill of Rights was adopted not that long ago. Has it produced any tangible results thus far? I have yet to see any. Why? I think it has to do with a lack of information and a failure to raise awareness. We have yet to see the fruits of the implementation of the Victims Bill of Rights.
I recently met with CAVAC representatives. Did they mention the Victims Bill of Rights? No. They aren't all comfortable with the Victims Bill of Rights. We work in the field, we have experience and we are able to tell the individual to expect certain things. It's a lovely bill, but no real effort has been made to follow through on it thus far.
So more education around the Victims Bill of Rights would help victims know what to expect. The Victims Bill of Rights entitles victims to information, to knowledge of the system and the process. But it doesn't fix the problem of court delays and adjournments. That's really where efforts are needed.
[English]
Senator Batters: Maybe it didn't come across clearly in my questioning with the language barrier, but could you tell us about your personal situation and those five years dealing with adjournments and various things. I imagine that every single time before those court appearances you had to really steel yourself and get yourself ready for that. Could you tell us about your personal experience of delay after delay, every single time? Not knowing what it was like, could you relay to us what that was like?
[Translation]
Mr. Fortier: As I was saying earlier, as soon as the bailiff serves you with documents indicating that you will be called upon to testify, you have to start replaying the events in your mind, and thinking about what you are going to say and what you need to remember. It's incredibly tough because you have to think back to the time of the abuse and relive it in your mind. As soon as you find out that you are going to have to testify, it's as though you are being abused all over again. It automatically wreaks mental havoc on those in our community.
When I was younger, it really upset my parents. Today, all it takes is thinking about the sexual abuse for me to become upset. A bailiff recently served me a letter at my place of employment. When I got that letter, I felt as though I was 13 again. In my 13-year-old mind, there was at least a half a day that I could not remember. So I replayed everything having to do with the sexual abuse in my mind. Although the letter made absolutely no mention of the abuse, it triggered a flood of memories. Having to relive the events every time you go to court is a nightmare. It's extremely painful and difficult. As a victim, you are trying to get through the ordeal with as little mental harm as possible, but adjournments and delays do exactly the opposite.
Mr. Tremblay: The preparation starts as soon as you report what happened to you. You realize that you're going to have to deal with certain things and you come to terms with that. At some points in the trial, I saw my psychologist up to three times a week. She agreed to see me at six in the evening, a time when she would not normally see patients, because I needed to unburden myself of the things going through my mind in order to survive the trial. The mental anguish you endure during a trial is unbearable. Yes, I hit back hard, but what happened devastated me. I had to put myself back together, purging my insides to face the ordeal. That's what victims have to do. They are terrified of being questioned about things they don't know or remember.
To pick up on the Victims Bill of Rights, I would say prosecutors know little about it. We see that lack of knowledge at the ground level. When I ask a prosecutor whether they are familiar with a certain aspect of the bill, they say they haven't had time to review it. Then I ask whether they have discussed it with the victim. I also ask the victim whether the prosecutor has mentioned it to them, and they say no.
[English]
Senator Plett: Mr. Fortier, in answer to one of the questions, you alluded to the fact that the judges, in many cases, may be at fault for this. I would like you to speak a little more about that. Do we need more judges? Are the courtrooms so booked that that plays into it, aside from the defence attorneys doing this?
[Translation]
Mr. Fortier: Are judges at fault for the entire problem? No, not necessarily. The system allows for adjournments, so accused take advantage of them.
But what judges should do is say "enough is enough'' at a certain point. Judges often make it seem as though they have no control over their court. By agreeing to delay after delay, judges leave victims wondering whether they matter at all in the process. It's well and good to say that it's time to move forward and that "enough is enough,'' as far as delays go. But judges seem to think that, by not granting the delay, they are failing to give accused every possible opportunity to defend themselves and that their decision would be subject to appeal as a result.
Does it all come down to the judge? No, I don't think so. I think it's still necessary to provide some education around adjournments. Would it be possible to pass legislation setting out a reasonable time frame or capping the number of times a court proceeding could be delayed in certain circumstances? As Mr. Tremblay said earlier, the proceeding starts with the preliminary inquiry and, then, come the day of the hearing, it gets cancelled. The judge who was supposed to spend two or three days considering the matter will no longer be there. The investigators and the victim have all made arrangements to be at the hearing. All of that significantly increases the cost and duration of the proceeding.
[English]
Senator Plett: You would be okay with judges having the power to set time limits on lawyers in most cases?
[Translation]
Mr. Fortier: Yes.
Senator McIntyre: Your organization works closely with other agencies to support male victims of sexual assault. Could you describe for us the work you do in cooperation with those agencies?
Mr. Fortier: Usually, when a victim contacts us, we try to steer them to the right person. When a man makes inquiries, whether to initiate a proceeding or simply talk, and runs into one barrier after another or is in contact with the wrong people, he tends to give up on those inquiries.
For example, we had a client who came in and started telling one of our caseworkers his story. She then called a Sûreté du Québec investigator to report the situation, indicating that the client wanted to meet with the investigator as soon as possible to discuss what had happened to him. The investigator told her that the crime occurred years ago and that he could meet with the client in three weeks. When the client heard that, he got up and left.
You can see, then, the importance of making the process as easy as possible. When a man contacts us, we ask him what he needs help with at that moment. If he wishes to initiate legal proceedings, we refer him to the right people. If he wants counselling, we refer him to other people. We support him, explaining the process and our experience with it. In some cases, we provide ongoing support and refer him to the best place for him.
Some clients tell us that they would like to see a psychologist but can't afford one. Our organization has agreements with experts who can help clients achieve the results they are looking for. We have agreements in place with help centres for victims of sexual assault and other crimes, which work primarily with women, as well as agreements with other agencies.
We work with men. In 2016, sexual assault affects men and women alike. First and foremost, we work with victims. We do everything in our power to provide support and refer them to the appropriate resources to meet their needs.
Senator McIntyre: Is your organization a non-profit?
Mr. Fortier: Yes.
Senator McIntyre: Do you get enough funding?
Mr. Fortier: If we were to collect all the money you have in your pockets and put it on the table, it would probably add up to our annual budget. In our first year of operation, I spent 30 to 40 hours a week working for the organization, on top of my regular job. Today, that's dropped to about 15 hours.
We've survived on a sizable budget of $7,000, managing to do quite a bit, making progress in a number of areas. In our first year, somewhere in the neighbourhood of 150 to 200 people reached out to us. We still don't have the final tally for this year. As soon as a story like the Claude Jutra scandal breaks, we are flooded with calls. A 78-year-old man called me to say that he had been devastated by the ordeal and that he wanted to talk. My job is to refer him to the right person so that he can talk about his experience and unburden himself as quickly as possible.
Senator Dagenais: Mr. Tremblay, you said you were abused more than 30 times by a priest. We realize that religious organizations have a lot of money. To what extent did the financial resources at the disposal of the accused in your case help him drag out the proceedings?
Mr. Tremblay: He had unlimited resources, staggering amounts of money, really. I spent a lot of my own money to cover legal fees until I agreed to work with the team who took on my case as part of the class action civil suit. But the accused in my case had unlimited resources.
Just try to find a single organization in Canada, whether it be Quebec's order of engineers or some other association, that would be willing to pay a lawyer to defend an individual who had sexually abused children. I'm not trying to get into a debate, but the church had the money to do it. The playing field was totally uneven. There are things that I've never said, things I was asked never to say, things I cannot say even though I experienced them first-hand. They have unlimited resources. Everyone knows church congregations are sitting on mountains of money. The accused in my case had the best possible lawyers and an endless amount of money.
As part of the class action suit, I was asked to submit to 10 expert assessments. When we were talking about the trial, I was asked when the process should begin. It begins as soon as you initiate the proceeding. In my case, I was asked to undergo 10 expert assessments. The judge ended up granting three of them, because there were three parties involved, but they were endless. People would say to me that I should be looking forward to my trial date, that I should be happy it was starting on September 9, 2013. But I wasn't. For me, the trial was over, and that was part of the enjoyment. I still wasn't able to talk, but they had taken everything from me. I underwent some 60 hours of questioning outside the courtroom — 4 days of questioning out of court — 4 psychological and psychiatric assessments over a period of 6 days. Those people knew more about me than I did. They knew that my father drove a truck and not a car when he died, in 1983. They had dug into my past, they had had me investigated, I am certain. In that regard, I can't disclose certain things that I had to endure but that I will share one day. It might seem as though I'm trying to hide things, but that isn't the case. The church has unlimited resources.
When you are confronted with a system like that, you have to be ready, and the only way to hold yourself up and to keep going is to purge yourself from the inside out. I knew that, in order to face them, I would have to be able to talk about every single aspect of myself. It's a nightmare that requires a tremendous exercise in self-cleansing. As you get ready, as you begin the process of preparing yourself mentally, when you file the report, you think your abuser will be arrested the next day. But I was told by police that crimes involving bloodshed were their priority. That's understandable, it makes sense. If somebody was murdered yesterday, police have to deal with that situation before mine. As Senator Joyal said, when someone has waited 24 years, what's another year. The problem, however, is that you can't stay calm because the floodgates have begun to open; you can no longer keep it bottled up, but you have to. And you have to make sure not to seek treatment for all of the elements troubling you so as to keep your memory intact. It's truly a nightmare. It amounts to victimization; it's as though you are a child again being forced to undergo another round of torture.
It comes back to being a child. To my mind, children are the most precious thing in life. Today's children are the ones who will be sitting here tomorrow, and we need to protect them. A child in an adult's body suffers just as much.
[English]
The Chair: Thank you again, gentlemen. We really appreciate your appearance here today. You've courageously confronted your personal challenges to help others, and it's very much recognized and appreciated.
Some Hon. Senators: Hear, hear.
The Chair: That concludes our business for today.
(The committee adjourned.)