Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 10 - Evidence for February 9, 2012

OTTAWA, Thursday, February 9, 2012

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts, met this day at 10:33 a.m. to give consideration to the bill.

Senator John D. Wallace (Chair) in the chair.


The Chair: I am John Wallace, and I am chair of the Standing Senate Committee on Legal and Constitutional Affairs.

Before beginning, we received word this morning that our dear friend and colleague Senator Fred Dickson passed away this morning in Nova Scotia. Obviously, it is a sad day for all of us.

There are many things to be said about Fred. I will leave those comments for another time, but I know I speak for all of us in extending our deep sorrow and condolences to Fred's family. Fred will remain in our thoughts and prayers.

Senator Fraser: I wanted to echo your sentiments, chair. Senator Dickson was a wonderful senator, liked and respected by all. It is a very great loss. He was a valued member of this committee for a time, and we too wish to send all of our sympathy to his family and his friends.

The Chair: Thank you, senator.

Colleagues, today we continue with our consideration of Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts.

This bill groups together nine bills that had been dealt with separately during the previous session of Parliament.

Bill C-10 was first introduced in the House of Commons on September 20, 2011, by the Minister of Justice, the Honourable Rob Nicholson. The bill underwent several weeks of consideration in the house before being introduced in the Senate on December 6, 2011. The bill was referred to this committee by the Senate on December 16, 2011, for detailed study.

In order to complete our examination of the bill, this committee intends to hold extended and additional hearings. As a result, we have scheduled 11 days of public hearings, including all-day meetings during the week of February 20 to 24. This is our fourth meeting on Bill C-10 and these hearings will be open to the public and will be available live by webcast on the website.

In addition to representatives and officials from the federal, provincial and territorial governments, we will also be hearing testimony from victims of crime and their families, academics, legal experts, law enforcement specialists, youth advocates, as well as representatives of various associations, stakeholders and others working in the field of criminal justice. In total, the committee has invited approximately 110 witnesses. More information on the scheduling of our witnesses can be found on the website under the Senate committees heading.

Before introducing our guests who are joining us today, I would first invite each of our Senate committee members to introduce themselves and identify the region they represent.

Senator Fraser: I am Joan Fraser, a senator from Quebec and the deputy chair of the committee.


Senator Joyal: Good morning. I am Senator Joyal from the district of Kennebec, in Quebec.


Senator Baker: I am Senator George Baker from Newfoundland and Labrador.

Senator Jaffer: Mobina Jaffer from British Columbia.


Senator Chaput: Maria Chaput from Manitoba.


Senator Frum: Senator Linda Frum from Ontario.

Senator Angus: I am Senator Angus from Quebec.


Senator Dagenais: I am Jean Guy Dagenais from Quebec.


Senator Lang: My name is Senator Daniel Lang from the Yukon.


Senator Boisvenu: Senator Boisvenu from Quebec.


Senator Runciman: I am Bob Runciman from Thousand Islands, Rideau Lakes.

The Chair: I am pleased to welcome Joseph Wamback, Chair, Co-Founder, from the Canadian Crime Victim Foundation, and Marie-France Marcil. It is a pleasure to have you.

Joseph Wamback, Chair, Co-Founder, Canadian Crime Victim Foundation: Thank you very much for this opportunity. I am going to comment briefly on some points that seem to have taken on a life of their own in the past six months to a year, but I am certainly willing to answer all questions.

Canadians are losing faith in their justice system. Bill C-10 is a start to restoring that faith. Some will have us believe that tougher or longer sentencing has no deterrent effect. These opinions are not based on fact, however. Factual data does exist in venues across the world that directly contradicts this opinion. One just has to look without prejudice for the data.

One of the most visible venues of tougher sentencing is the state of California, where studies clearly show that 10 years after the introduction of their three-strikes law, there was almost a 50 per cent decrease in the crime rate across the board, from murders to robbery. In addition, in the following eight years the crime rate reduction was again an additional 26 per cent, and their population grew by over 27 per cent during that particular period of time.

These studies also concluded that recidivism has markedly decreased. Doomsayer predictions at the time of massive increased costs to the state just did not happen.

I recently read an article in the Toronto Star suggesting that the cost to Ontario would be in excess of $1 billion if Bill C-10 is passed. This is opinion only and not based on relevant facts. I believe that just the opposite is true.

Numerous studies, including those prepared by the California District Attorneys Association, Harvard Law School and others, have demonstrated that just the opposite has occurred in the state of California. Incarceration rates are lower, and prison populations are decreasing, as are court and inmate costs.

Some argue that great savings are made by releasing habitual offenders, but, by definition, these offenders are in and out of prison on a repetitive basis. The real question then becomes whether there are any savings by letting habitual offenders out. What is the cost of catching and reconvicting them? Do the crimes they commit while they are free outweigh the costs of their incarceration, never mind the cost to victims and society?

Cost analyses in California have confirmed a net saving — and these are studies I will make available to anyone who wishes to view them — to the economy of $54 billion since the introduction of the three-strikes law.

What are the real costs of crime? Can we put a value on human life, on innocence lost or family units broken, or the loss of productivity of any survivor or the loss of income sustained by a murder victim's family?

Each murder in Canada costs, on average, $2.7 million, and robbery costs $15,000. These are quality-of-life expenses to the victim. Rape and assaults are about $41,000 each in quality-of-life expenses.

According to a study by Simon Fraser University's Professor Stephen Hart, commissioned by Correctional Service Canada, from 1975 to 2002, convicted murderers on parole have murdered 481 Canadians. The cost to Canada was $1.3 billion.

For example, in 2000, 27,000 Canadian women were sexually assaulted, and the cost to Canadians was $980 million; 554 Canadians were murdered, and the cost to Canadians was $1.6 billion; 31,000 robberies were committed, and the cost to Canadians was $403 million; and 234,000 assaults were committed, and the cost to Canadians was $7 billion. These figures do not include justice, police or correctional system costs.

The medical costs to Ontarians to keep my son alive were several million dollars. The personal cost to my family was $250,000, and it increases on a daily basis. The lost opportunities are immeasurable.

Some have suggested that youth learn to be better criminals in jail, and yet there is no evidence to support this notion. This is opinion without fact, which renders it nothing less than prejudice.

My own evidence, based on a decade of working with young people, that I share with you today is that if a young person is going to learn criminal behaviour, he will learn it from the clever young criminals who are smart enough not to be caught or who have learned to play the system. He will learn this at his high school, the local plaza or the local hockey arena. Empirical, fact-based evidence is available, demonstrating that tougher sentencing protocols have reduced youth incarceration, due to tougher sanctions for criminal behaviour.

In the last 12 years I have seen families torn apart, bright, young futures destroyed by drug pushers and sexual predators, who receive little or no sanction for their criminal activity. It is our responsibility jointly, as Canadians, to protect the most treasured of our values, and that is the right to life and the enjoyment of the pursuit of that life.

Sentencing must reflect the severity of the crime, deterrence, societal denunciation and, most importantly, it must demonstrate that the lives and futures of victims of these crimes also have values. Minimal sanctions and house arrest for violence, pornography, drug pushers and sexual predators send a loud, clear message that the lives and futures of our children are valueless, or certainly of less value than their victimizers.

Bill C-10 is not about the kid found with a joint or someone who makes an innocent mistake. It is about organized crime, drug manufacturers and distributers that are destroying innocent lives and the quality of life in Canada for their own personal gain.

Lastly, we recognize that victims of crime do not play a participatory role in the Canadian justice system. At the very least, let their voices be heard here today.

The Chair: Thank you. Ms. Marcil, do you have an opening statement?


Marie-France Marcil, as an individual: Mr. Chair, I wish to begin by thanking those who made my participation in this meeting possible. I very much appreciate having your ear.

My presentation today is more concerned with the amendments to the Corrections and Conditional Release Act. It will focus on two points, victim protection and rehabilitation. My name is Marie-France Marcil. I am the sister of Maurice Marcil, who was murdered on July 3, 1979, with another victim, Chantal Dupont, by two criminals. Maurice was 14 and Chantal 15. The tragedy received a lot of media coverage at the time. And yet the fate of the victims and the identity of the perpetrators of this horrendous crime came very close to remaining hidden among the justice statistics.

When my brother and Chantal were murdered, one of the two criminals, who had already had time to commit multiple assaults, had broken their parole. Even though he was only 26, he already had a long criminal record. I never understood how the parole officer was able to say in front of my mother, "I naively thought he could be trusted." How can such decisions be made so lightly, unaccountably, when there is such a risk of reoffending?

My inability to understand only worsened when, 20 years after the death of my brother, another victim, almost his age, lost his life in similar circumstances, in August 2000. His name was Alexandre Livernoche. Author Yves Thériault wrote about his case in his book Tout le monde dehors, published in 2005. The author cites many other cases of murder that could have been prevented.

Personally, 33 years after my brother's death, I am grateful and deeply satisfied to welcome Bill C-10.

In particular I support clauses 52 and 57 of Bill C-10, which are aimed specifically at the interests of victims. For the benefit of the public, these clauses broaden the definition of victim to anyone who has custody of or is responsible for a dependant of the primary victim if that person is dead, ill or otherwise incapacitated, and by allowing disclosure to a victim of the programs in which an offender is participating or has participated with a view to rehabilitation.

When the 25 years of imprisonment of the murderers of my brother and Chantal ended, a wave of terror shook the members of our families. Following some research, we got the information and help we needed from the National Parole Board to support us in this next stage.

At present, one of the criminals still denies responsibility for his acts and still has not shown any empathy for his victims. He did not take part in any of the correction programs for sex offenders and, astonishingly, this is the one who, every two years, asks for parole and systematically appeals the decision.

The other one, the one who confessed and took part in certain programs, has not yet dared to ask for parole. For our families, every time an application for parole is made, our fears are revived. I think of people like Sylvie, Chantal's sister, who for a long time was convinced that she would be the next victim and is still afraid.

As for me, I am still living in unelaborated mourning. I also think of the victim of Richard Charlie, who is regaining his freedom, is a many-time repeat offender and is returning to society. I can barely understand, but I can imagine this victim's state of mind.

I also support clauses 55 and 103 of Bill C-10, whose provisions should ensure better monitoring of the rehabilitation of prisoners. Here too, for the benefit of the public, there is a provision for the strengthening of offenders' active participation in meeting the objectives stated in their correctional plan and for the provision of incentives by the CSC Commissioner to encourage them to meet their objectives. The offender's correctional plan will be taken into account in any decision regarding parole or any other privilege.

There is also the expansion of categories of offenders subject to continued detention after their statutory release date when they have served two thirds of their sentence, for example, offenders convicted of child pornography.

I think it is necessary and essential for offenders to take an active part in their correctional plan, since this is mainly about the possibility of rectifying the factors leading to their offences. To my mind, we cannot do anything for their rehabilitation if they cannot come to some sort of introspection and genuine motivation to meet the objectives of their correctional plan. It seems to me that these provisions will make it possible to be more discriminating and to adjust the correctional plan in light of each offender's profile.

I also support clause 92, which enables any peace officer to arrest without warrant an offender who has committed a breach of a condition of their parole. Clause 64 would allow Correctional Service Canada to demand that an offender wear a monitoring device in order to monitor compliance with a condition of their temporary release that restricts their access to a person or a specific region.

It may be that some assessments of a prisoner entitle them to be given parole. However, even though a prisoner may have the best of intentions, reoffending is always possible and, in such cases, it becomes very hard to track down someone who escapes while the criminal may easily perpetrate their crimes. The safety of the public and of victims should not be neglected in any circumstances. Thank you.


The Chair: Thank you, Ms. Marcil.

Mr. Wamback, in your opening statement you referred to cost analysis done in California. You also referred to empirical fact-based evidence that is available. If any of that is available that you could file with our committee, we would appreciate it.

Mr. Wamback: Yes, I will, and I will provide it to the clerk either before I leave or by email within the next 48 hours.

The Chair: Colleagues, as always, we seem to be pressed for time. However, I will allow this to extend for roughly 15 minutes. If you can keep that in mind with your questions, and if you could keep your responses as succinct as possible, it would be appreciated.


Senator Fraser: Thank you both for your presentation.


Mr. Wamback, I was also going to ask for the studies you mentioned. There is a passage in your remarks I would like you to clarify for me. You said based on your evaluation, each murder cost Canada on average $2.7 million, robbery cost $15,000, and rape and assaults cost $41,000 dollars in quality-of-life expenses.

Could you explain what exactly you are trying to tell us? How did you reach your own evaluation of these numbers and what do you consider quality-of-life expenses?

Mr. Wamback: It is an excellent question. Quality-of-life expenses are lost wages, lost opportunity, medical costs, psychological costs, and things of that nature.

The base for my formulation was completed by a study done in the United States. We do not have any studies here in Canada to parallel this particular evaluation. We are currently working with York University in funding studies that will provide us with this empirical data, but I took their numbers and converted them into Canadian dollars. That is how I came up with the numbers we had today. I felt it was as reasonable a position as I could take to try to demonstrate that when someone's life is taken, it has an immeasurable, huge, massive cost to Canadian society, not just to the criminal justice system or the corrections system.

Senator Fraser: Could you include that particular element of your work in the document that you will provide to the clerk?

Mr. Wamback: Yes, I will.


Senator Fraser: Thank you, Ms. Marcil, for coming here today. Unfortunately you already have quite considerable experience with the parole system, with correctional services. In this bill, there is provision for more information to be given to victims. Do you think it is necessary, because I get the impression that you have already got quite a lot of information about the criminals?

Ms. Marcil: I think that it is necessary, yes, because first of all we really should have been informed of what the criminal's sentence meant from the start. What we gathered was life in prison and life in prison, whether for one murder or five, is 25 years. Now that has been changed and I particularly appreciate this change, but at the time it was not so. So we knew that there was no application for parole possible before 25 years. We did not understand what life meant, who was eligible, who had to go before a board, and so on.

When the 25 years were up, we got a bit scared. Through contacts, I managed to get in touch with someone in national parole, but I had never been informed. Now I know that has changed; there is a toll-free number. That was not so before. That meeting was very, very helpful for us; it reassured us. It was important for my mother for victims to be given a place. She is the mother of a murdered child. She will always be the mother of that child and will go on playing her role as mother until the day she dies.

So a place was made, but we still had to find the resources. The other family learned that we had done this and was disappointed not to know anything about it. Afterwards, we were able to inform the other members of the family and the other family concerned and everything, to reassure people and help them understand. It turns out that a few people were informed. That could have been done sooner.

There were a lot of things I had to deduce because we were told: "He's gone to such and such a place."

Eventually, when I found out he went to La Macaza, I knew that it was a penitentiary for sex offenders. No one told me that, but you end up finding out. Suddenly he was gone somewhere else. I can assume that he did not pass his program. Over time, I got this information, but not necessarily because it was given to me. There are times when you want to know and other times when you do not.

Even if it was just to be able to say to someone in the correctional system what the limits of the system are and for that person to listen, because the system has its limits and will never be perfect.

Senator Fraser: Any system?

Ms. Marcil: Yes. Among the changes made, 14 days were added instead of two days when the criminal can —

Senator Fraser: Yes, I wanted to ask you about that.

Ms. Marcil: Of course, this is a plus for families. There are costs. We get the right to attend parole hearings. However, to speak to the commission, we have to provide documents if we are making a written statement and we have to provide them one month before the hearing. So the criminal has time to study the statement for at least two weeks and can then decide to postpone, even after the victim's statement and, when the victim or the victim's family open up, they are also scared and afraid. Chantal's sister would never attend a parole hearing; she is too afraid. We might not be able to explain it. Think about the people who were physically affected — I have a hard time imagining how afraid they must be.

There are still some bad delays. You might say these are details but, when you take the time to examine them, you see that it can all have an impact on the victims and that there is room for improvement. But the important thing is to move ahead.


Senator Runciman: Thank you both for being here. Yesterday we heard from the Canadian Bar Association, CBA, and the Quebec bar. I cannot tell you how important it is to hear from people who have suffered and continue to suffer from the actions of criminals.

Mr. Wamback, I want to especially thank you for raising the issue of cost. Frequently, when looking at the cost of crime or looking at the cost to the justice system, in terms of impacts of new legislation, those kinds of considerations perhaps do not get the weight they merit. In talking about your son's costs and those incurred by victims, hopefully we will give greater weight to that going forward.

I want to raise a couple of issues with you, just to get feedback from both of you. In respect to some of the issues that were raised by both the Quebec bar and the CBA, we did not have time to get into all of them yesterday, but they did raise some.

In getting into the pardon issue, I think it was the Quebec bar that said that neither the number nor the nature of the convictions can justify making it impossible for a rehabilitated offender to obtain a pardon and thus erase the inevitable stigma associated with having a criminal record.

They were referring to the change in the legislation that will make individuals convicted of sexual offences against minors and those who have been convicted of more than three indictable offences, punishable by imprisonment for two years or more, ineligible for a record suspension. They oppose that amendment. What is your reaction to the position of the bars?

Mr. Wamback: One of things I have learned in my short time on the planet is if you look for something you will find it.

I want to digress for a second on the statistics that I have given today. You can find anything you want. You can commission a research facility to provide you with an empirical, peer reviewed, statistical database to say whatever you want it to say.

With respect to the positions of the bar associations on parole, I am an employer. I do this work for victims as a volunteer. One of the most important things to me when I look at hiring an individual is their trustworthiness. If someone comes and tells me they have been convicted of a crime, to me that demonstrates clearly that they are forthright and want to be honest with me and with their employer. I would have no difficulty hiring anyone under that set of circumstances.

As far as being a multiple, repeat offender, someone who has gone back time and time again, some people will just never learn. What do we have to do as a society to keep those individuals from continuing to repeat and wreak havoc — violence, monetary crimes, whatever it may be? I think it is time that we, as Canadians, establish some ground rules for the greater benefit of people who walk the face of this country from coast to coast than for those who violate society's rules on a regular and repeat basis.

Senator Runciman: Another proposal they have objected to is the issue of offenders not being able to cancel a parole hearing. We have had some instances, and I think Clifford Olson is perhaps the most notorious, where we are putting victims through the wringer once more. The government, with this legislation, is saying you cannot cancel a parole hearing within this two-week period before the scheduled date. Do you have any reaction to that, from a victim's perspective?

Mr. Wamback: From my perspective, we know family members of victims of Clifford Olson, and many family members of victims of homicide, who have attended parole hearings. Some have flown in from Red Deer, Alberta, to attend a parole hearing, only to discover the moment they set foot in the penitentiary that the parole hearing has been cancelled. They return home, and within 48 hours the hearing is rescheduled and they are unable to get back to attend that parole hearing.

Fourteen days is a welcome change not only for victims of crime but also for other Canadians who are beginning to understand the issues related to the fear, frustration, devastation, hurt, pain and lifelong effects of an act of extreme violence in a family unit, and that to put them through this again and again is unconscionable. Fourteen days is welcome. If it were up to me, I would have made it 30.

Senator Runciman: The Quebec bar also said yesterday that they oppose mandatory minimum sentences in every instance, including, I assume, impaired driving. What is your view generally with respect to those mandatory minimum sentences?

Mr. Wamback: I hate to hog the microphone; I apologize. One of the things that was clearly demonstrated in other venues with minimum sentencing is that it has an extreme deterrent effect and a positive effect. This effect is not only on criminal activity in those venues but also with respect to the cost of administering that criminal behaviour. That is in California as well as in other states.

We have to look at other venues if we want to establish some historical data, as opposed to opinion not based on fact. Let us face it, if criminal behaviour is continued on a repetitive basis, is it not a conflict of interest for those in the various bar associations to continue to defend and create backlog after backlog? What is our backlog in our courts today in this country, four or five years? It takes too long. The dispatch is something that has to change as well. It takes far too long from the act to final disposition of criminal justice in this country because we are continually dealing with the same people all the time.

Senator Runciman: It was again the position of both bar associations, which is kind of ironic, in relation to the increased judicial discretion allowed with respect to the Youth Criminal Justice Act — and one of the areas is pretrial detention — if the judge determines that the individual charged poses a public safety risk they can retain that individual in custody. They oppose that. I wonder if you have any views you would like to put on the record with respect to that initiative?


Ms. Marcil: Can you repeat — if we were to add — can we repeat the senator's last sentence? I would like the gentleman's last sentence to be repeated.


Senator Runciman: The act is changing and allowing judges to have more discretion in how they deal with young offenders. If they believe they pose a public safety risk they have the option of retaining them in custody up until trial because putting them out in the street again could endanger lives.


Ms. Marcil: I think the more we send them to jail early, for an extended period, young, the greater the chance they will not have to spend their lives there. That is kind of what happened to my brother's murderer. Although he might not have stayed there all his life if someone had not, by an incredible stroke of luck, found the bodies and made sure one criminal confessed, because a police officer had been informed of the facts. There was a whole set of circumstances. If he had just done the time he had to do, this young person, who was no longer a minor but had a long record, maybe a few years spent maturing might have prevented him from doing something irreparable.

On television I heard the testimony of a murderer who had killed his partner out of greed. He confessed that he himself took seven years to stop denying the act he had committed, seven years with a great deal of therapy and so on, and we are not talking about a young offender. We are talking about someone who had a structured personality.

Indeed, crime is the outcome of something that has already gone wrong. If we really wanted to combat crime at the source, we would have to invest in families.

It is already too late when a young person gets to that stage. We can hope for him but I think we have to be very careful. There is no rehabilitation for victims. I am not yet rehabilitated. I work in a rehabilitation centre for persons with physical disabilities. We calculate that someone who becomes a quadriplegic as a result of an accident will take six years to remake a system of values before resuming a new rehabilitated life.

We have to be cautious when we use the word "rehabilitation"; the prison system is not a charitable organization. If we want to reduce crime in our society, we have to invest in charitable organizations, organizations that enable rehabilitated ex-prisoners to sponsor other prisoners, to do prevention on-site. Could they not, even inside the prison, make a social contribution? We know that, with the Internet, lots of charitable organizations need a Web site and cannot afford to publicize their works. Could we not give them a chance to make a contribution while they are still in prison?

This question is still wide open. And, in my opinion, if a judge can impose harsher sentences, he may be protecting other victims who probably cannot be rehabilitated. That might give young people a chance, at least while they are there, to not re-offend. And at least my brother would be alive. Could there perhaps have been other victims? The question has to be very specifically asked.


The Chair: Thank you for the comments.

Mr. Wamback: I need to add because it is direct to the question Senator Runciman asked. Three of the 14 boys who hurt my son were arrested. They immediately made bail. They did not get to a court until four years later. During that time those same young men broke the arms and ribs of a 16-year-old boy, continued to reoffend and walk around with larger badges of courage in our community, even though the Crown advised — and I was there when the Crown advised — that one of these boys was going to murder someone. Had they been held in custody we know there would be at least one boy and one family that did not have to move out of the neighbourhood. That is fact.

Senator Jaffer: I want to thank both of you for being here. Ms. Marcil, you thanked us for our time, but it is we who have to thank you. It is not an easy experience for you to be here. My colleagues and I appreciate your presentation. We need to hear from you.

Before I came to this job I worked for many years with sexual assault victims. My dream was that once something terrible happens, the victim gets assistance from that minute on. There is the Minnesota Model, and when a police car is dispatched there is someone to help the victim throughout the process. They stay with the victim. Unfortunately, we do not have that model here yet. It would be useful if you could give us advice on what we can recommend — you have given ideas about the parole hearings, but other things that would help if they were in place to assist the victims. There is no doubt there that more needs to be done to help victims. What should it look like? From your very sad experience, what do you think would have helped you?

Mr. Wamback: How much time do you have?


Ms. Marcil: The first thing is not to be a victim. That is why I am here today. Let us do all we can for there not to be victims. My brother would have preferred to come out of this criminal act missing a limb, but alive. Chantal too would likely have preferred to live without compensation, to live with the trauma of the assault, but still alive. Some things are priceless.

In my situation, there was nothing in 1979, no consideration from the police. I have a hard time talking about that. I know that things have evolved with services like CAVAC. I have never been entitled to compensation. I am not an official victim and the official victim, my brother, cannot receive services.

There is the association Plaidoyer Victime, which gathers people's grievances. There is always more to be done. If I may say so, let us give compassion! Let us try to have more compassion for the victims in general so that penitentiary employees realize that it is all about the victim, that they are working for the victims and not for the criminals, working for the victims with the criminals. Then we might achieve the right mindset.

Attitudes change and will continue to do so through a desire for compassion, which is not easy, which cannot be taken for granted.

That is why I am still living with this pain because there is no room in society for compassion towards victims.


Mr. Wamback: I would like to add that in the past decade I have been researching victim services around world. I learned that Canada stands twenty-sixth in the world with respect to how it treats its victims of crime. It does not meet the minimal standards set out by the UN on the rights of victims of crime. We have a lot of work to do. It is a patchwork across this country. Some provinces provide no services; others provide some. In our case, the cost was huge. We were financially able to support that. We received no support from any government, private agency or otherwise, and we find many victims in the same circumstances. Through our efforts, we have been able to provide some extended sickness benefits through Employment Insurance programs. I do not believe it has passed yet to provide Employment Insurance benefits for parents of murdered children.

In many cases, people we work with and know who have lost a child are told by their employer, "Gee, you have lost your child; it has been six weeks, get over it. You have had enough vacation now; you have to get back to work. If you do not come back to work you lose your job." That is not right.

I have always believed that we, as Canadians, are the most compassionate people in the world. For some reason, we have always kept our eyes closed when it comes to the results of crime. We are trying to find everything we can and determine everything we can about the criminal and those who exhibit criminal behaviour, but we do nothing to support the victims.

My own foundation, through private money, has introduced two research programs to the University of Victoria and York University to provide research into victims of extreme violence, siblings of victims and survivors. Where are they today? Where were they 10 years ago? Then we can provide this evidence to committees like this one to change legislation and provide support for what I believe to be Canada's most marginalized people, those set adrift in an ocean without any means of propelling themselves to the shore. There is no support or help.

Murder victims and mothers of murdered children are routinely denied support in this province through our own Ontario Criminal Injuries Compensation Board, because they did not physically witness the murder of their child. They arrived on the murder scene five minutes after their child died, so they are denied support. People do not want money; they do not want compensation. We cannot be compensated. We need support, understanding and psychological counselling. That is what we want.

There are great models out there around the world, and I believe our own federal ombudsman has disseminated information to people across this country that will be of great benefit and will provide the kinds of services necessary for people who have lost the most.

We have a long way to go. It is a huge subject; I could go on for a long time.

The Chair: Senators, we will have to end this panel at 10 minutes before 12 o'clock. We have an half an hour. It is essential that we be in the chamber at 1:30. We will end our second panel, at the latest, at 1:15 to give us time to get there. We have half an hour, and we have Senator Angus, Senator Baker, Senator Boisvenu, Senator Joyal and Senator Dagenais. I realize the topic is personal, but if you could keep your comments as brief as possible.

Senator Angus: Mr. Wamback, I found your testimony — as I did the last time you were here quite recently — very refreshing and inspirational in a way, especially against the backdrop of what we were hearing yesterday. I just want to thank you for what you have said.


And it is the same thing for you, Ms. Marcil. I understand that it is hard for you to express yourself this way. I thank you sincerely for your testimony and your ideas, which will help us to find effective ways of resolving this problem.


The questions I was going to ask have been well covered by Senator Runciman and Senator Jaffer. I would like to associate myself with their questions and the answers in that regard. Perhaps this will assist you in running this meeting at the speed you wish.

Senator Baker: I want to put on the record my appreciation for the testimony that you have both given here today. It is necessary that the committee hear this evidence.

My one question or observation is about Mr. Wamback's cost estimates. He said:

What are the real costs of crime? Can we put a value on human life, on innocence lost or family units broken, or the loss of productivity of any survivor or the loss of income sustained by a murder victim's family?

Then he said it was based on his own evaluation.

Mr. Wamback, people who are not familiar with our damages case law in Canada would find it remarkable that you could put such values on quality of life, for example. However, I find, in support of what you are saying here, and for the first time being able to do what our damages law in civil proceedings in this country tries to do, and that is to place a dollar value on something that you cannot really value.

I find, for example, that you have been very conservative in your estimates of $41,000 for quality of life, for example. These estimates are continually going up in our courts, in our superior courts in the provinces. It is up now to $350,000 for a loss of enjoyment of life for non-pecuniary damages, called general damages in damages law.

I would like to support and thank you for quantifying, in that manner, the loss to our Canadian society. It is the first time I have seen it actually done in such detail for Canada. I would support you, because I always read case law concerning damages, daily. I would say that you are to be congratulated. You are perhaps underestimating, too, in some cases, the actual cost today.

Mr. Wamback: One thing I would like to add is that we hired forensic accountants and psychologists to put together an evaluation for a civil suit against the boys who hurt my son. Of course it never went anywhere because you cannot sue someone under the age of 18. We did go through that exercise, however, and the quality of life estimates from these professionals were in excess of $5 million.

Senator Baker: Loss of enjoyment of life, general damages, yes, sir.


Senator Boisvenu: Thank you both. My question will be along the same lines as Senator Baker's, namely the problem of helping victims who receive very little support.

Support for victims is a provincial responsibility. In Canada, some victims are better off, depending on the province where they live. Quebec and Ontario treat their victims relatively well. But if you are unfortunate enough to be in Newfoundland and Labrador or in other places, you are not going to get services. On the other hand, help for criminals, particularly murderers, is a federal responsibility. So murderers, whether they commit their crime in Quebec or British Columbia, will receive the same services wherever they are in Canada.

My first question is as follows: even though support for victims is a provincial responsibility — as health is a provincial responsibility, but with national standards — would it be a good idea for Canada to have national standards of victim support so that there would not be different categories of Canadians?

My other question concerns compensation for victims of criminal acts. In France, when there is a criminal case, there is also a civil case. Both cases take place at the same time. When criminals are found guilty, they are ordered by the judge to compensate the victim. If they are solvent, they compensate the victim from their own assets and, if they are not, a victim's assistance fund compensates the victim, and that is that. The criminal has been sentenced and the victim has received fair compensation.

Could this not be a model for Canada to adopt so that victims and criminals are treated the same?

Ms. Marcil: I am not very familiar with the French model. What I do know, though, is that it shows a desire for consistency.

There should be a balance between the victim and the criminal. We have to make sure that everything moves forward consistently. I think that this would be a step in the right direction towards consistency in a system that will always be imperfect. We have to at least aspire to consistency. I think this is headed in the right direction.


Mr. Wamback: Even if restitution orders for victims are given, they are not enforced by anyone. It is left up to the victim. Restitution orders are rarely given in this country.

Judges in this country are not even imposing victim surcharges, which are supposed to go to the Victims' Justice Fund. I am told by judges they are not doing this because they do not know where these surcharges are going. Are they going into general revenue in the provinces? In most cases that is where they end up. They are refusing to fund the victim surcharges that are currently a requirement in this country.

I have been suggesting for 10 years now that we need a solid federal framework so families in Newfoundland are treated the same as families in British Columbia, Ontario or the territories. It does not have to be a massive bureaucracy, but it has to be consistent from coast to coast. That is what this country is about. I am discouraged every time I speak with a family from the East or West Coast and I find out they are all treated differently by their provincial government. Something has to change drastically. Thank you for bringing that up.


Senator Joyal: My first question is for Ms. Marcil. I listened to you very carefully, and I was surprised to note that you did not bring up the need to improve the current victim support program administered by the Government of Quebec.

I do not know whether you saw Ms. Gaston's testimony on the program "Tout le monde en parle" on Sunday evening. She raised three very important points in my opinion. First, she first asked for a broadened definition of the concept of victim, since she herself as the mother of the children was not regarded as a victim. I think that you indirectly referred to that issue earlier.

Ms. Marcil: She is benefitting from a better compensation system than the one that existed for my family at the time of the events. My mother did not have any compensation whatsoever; she is regarded as family. This new compensation is retroactive to 15 years ago, so our family still does not qualify for compensation.

In my work in physical rehabilitation, I meet people who are disabled from traffic accidents, industrial accidents or accidents at home while doing renovations. I have often said to people, "If you fall off your roof and break your back falling, drag yourself into the street because you will receive less compensation from the Régie de l'assurance-maladie than from the Société de l'assurance automobile du Québec." Still it is all the same money out of our pockets.

So maybe we should propose a compassion tax. People might actually realize that becoming a victim is not something that just happens to others. We always think that some stories are unlikely but no one here is entirely safe, just as no one is entirely safe from a car accident. The whole thing should be reconsidered. We received $500 for the burial, but a coffin cost more than that at the time. Since the bodies were found in the water ten or eleven days after they disappeared, a metal coffin was required.

Senator Joyal: That too was one of the points raised by Ms. Gaston in her testimony on Sunday evening. She mentioned that the $3,000 compensation she received for the funeral did not cover the costs she had to pay.

Ms. Marcil: If her children had died in a traffic accident, she would have been compensated. As a direct result, the problem of crime goes even further because, regardless of the compensation, trust in the justice system is deeply affected.

Senator Joyal: If I understood her presentation correctly, the third point she raised was the length of psychological care. She said she was entitled to only eight sessions, whereas, as you say, you yourself are the best judge of that. It often takes a lot more than eight sessions with a psychologist to get through it.

Ms. Marcil: It is not over for me, and I have had more sessions than that, at my own expense, of course.

Senator Joyal: Obviously you are not covered by the current program since, according to Mr. Charest's comments in the media, there is still $36 million in the Government of Quebec's victim support fund. I have not checked these figures, I am repeating what I read.

Ms. Marcil: As she said, she has an employer and can therefore take leave from her work for her depression. However, she said that people who do not have those working conditions or insurance can actually lose everything.

This is the first time I personally have told this story in public because I could not function at times where I work if I had to tell it. We have to set it all aside for the rest of our days.


Senator Joyal: My question is to Mr. Wamback. In your brief, you raised the quantum of what could represent the cost of crimes in Canada. In your last answer you mentioned — and it is my strong conviction — that when an offender is sentenced, the judge should have a repair section in his decision whereby someone who creates damages in the civil field, as Senator Boisvenu said, is responsible. However, I think it should also be part of the retributive aspect of the judgment and sentence. I am strongly of the opinion that in the principle of sentencing in the code, there should be a provision asking the judge to consider that in each and every case. He should explain the reasons why he has come to a conclusion in relation to a crime, especially when we know that there will be immediate consequences. If someone is the victim of a murder or a serious crime, we know there will be psychological impact, financial impact and immediate costs that the person will have to incur.

It seems me it is an important concept that should be part of what we want to introduce into the Criminal Code. It would give effect to the preoccupation that a criminal is paying his debt to society not only through prison, but also paying for the real damages that the offender has triggered.

Could you comment on that since you are very concerned with the cost of crime?

Mr. Wamback: In a perfect world, it would be an ideal solution. However, in our world I do not believe most people convicted of extreme violence are going to be financially capable at any point in their lives to provide a restorative amount to the victims they have harmed. It could be part of a system where contributions by those convicted individuals would provide at least some demonstration of remorse. I think that is what we would find. In reality the costs are so massive —with respect to people who are harmed — that it is the global responsibility of every Canadian to be able to look after people who have been so severely marginalized through no fault of their own.

Senator Lang: I want to say that I think we all thank you for coming here today. We cannot even contemplate how difficult it has been for you, people who have experienced what you have and other Canadians.

It is a very startling statistic that Mr. Wamback provided us that, from 1975 to 2002, 481 Canadians were murdered by individuals who were out on parole. That is fact, not fiction. I think it is a statistic that really bears close examination.

I would like to move to an area that both the witnesses have experienced, and that is the court system. Obviously, you have spent many hours, in one manner or another, in these courts that have been set up with all good intentions by the government to provide justice.

Yet, at the same time, I believe Mr. Wamback indicated that in one case, from the actual crime taking place, it took four years to come to a conclusion. That, in my judgment, is unforgivable. Unforgivable for everyone involved.

I would ask you, with your experience in the court system, have you thought of any recommendations, from a procedural or any other point of view, that could be incorporated that would cause our court system to speed up and be more efficient than is obviously the situation that you faced and other Canadians are facing?

Mr. Wamback: Absolutely. I am an engineer, not a lawyer, but when I see the same individuals doing the same thing on a repetitive basis, and I am not talking about the criminal but about the justice system where we have pretrials. It is my understanding that pretrials were brought into the process to provide a reasonable expectation of exchange of documents and information between the defence and the Crown.

Subsequent to that, full disclosure rules were announced. What we are really having now in pretrial is a dress rehearsal for the real thing. It is a huge waste of resources and time. I believe that our judiciary, our defence attorneys, our Crowns and our judges are intelligent enough to make this system work without a requirement for pretrial. Pretrial was introduced because there was no full disclosure. Now that there is full disclosure, why do we need a pretrial?

You are absolutely right that four years is fundamentally and morally wrong. The dispatch, the time between the offending behaviour and the final disposition, is so long, especially when dealing with young people; it is virtually meaningless.

If your four-year-old steals a cookie, you tell him or her there will be a consequence. However, if you tell that four-year-old, after stealing that cookie, to go up to his room and come back down and we will discuss this in two weeks, and we will set a time for when we will discuss what the ultimate consequence will be, that entire process is meaningless and wasted on our children.

The kids who commit crimes of extreme violence — rape, violence against young girls in our high schools — they throw their credit cards at a JP because daddy will pay for it. That happened in the case with the boys who hurt my son. The following day they were back in high school with a bigger badge of courage than they had before, because everyone knew what they did.

That is another thing about the publication of names of young offenders. It is not a secret. Everybody in that community knows who did the crime. His peers know who did it and why they did it. They see that, because of the amount of time it takes to bring that individual to justice, they get away with it. It is free. There is no consequence for it.

There are ways to speed this up. One thing that Bill C-10 will do with tougher sentencing is the corollary event that we will reduce habitual criminals if we keep them in jail a little longer. We will reduce the number of times that the Crown has to deal with the same individual over and over again.

The experience in California has shown that wait times for courts has now decreased massively. I cannot remember the exact number, but it is absolutely huge, and so is recidivism.

Recidivism in Canada, the way it is collected by Statistics Canada is really, as far as I am concerned, inappropriate. If a federal prisoner commits a crime within two years of his release, he is counted as a recidivist. If he commits a crime to which there is provincial penalty, he is not considered a recidivist.

Statistics can say anything you want them to say. We, as intelligent individuals, must go beyond that, look into it and find the real causes. Solutions are there. I am sure they are.

However, the length of time it takes is absolutely tragic and wrong. The only people profiting are those who work within the justice system, not the victims who are re-victimized over and over again. There is no need for it.


Senator Chaput: I just wanted to thank both our witnesses for having come today to share with the committee the reality they have lived through and they will continue to live through the rest of their lives. It moved me very much and I thank you for it.

More specifically, Mr. Wamback, I very much appreciated the statistics that you presented here. It is very important to have shared that with us. And Ms. Marcil, in your presentation, despite all the pain you have suffered, you managed to talk to us about clauses in Bill C-10 that support victims' rights. I appreciated that very much.

Senator Dagenais: I wish to thank you and to salute your courage. It is not easy. Every time you talk to us about these events, we realize that you are reliving the emotions. I have read what you prepared, Ms. Marcil. I understand what you were saying about there not necessarily being follow-up in the correctional programs for offenders. Clearly when there are parole applications, your fears are revived. Am I to understand — you may both answer — that you would not have objected if these people had been paroled? You know that, when they are released, they have conditions that unfortunately are not always met.

I would like to hear what you have to say about released offenders wearing electronic monitoring devices, if only for your reassurance; I understand that you are collateral victims.

Ms. Marcil: Above all, the reassurance we need is about the process, hence the importance of monitoring offenders and being certain that the decisions made have been carefully thought out and are based on real facts and considerations. As for the risk, with criminals who have breached their conditions and, as we have even seen on television, someone like that has been illegally at large for 465 days, we realize that it is not easy. And today, there is still always the risk that, if someone escapes, we will be unable to track them down.

However, it was not just crimes on June 26 and July 3, these criminals committed a number of them on a daily basis; they were still illegally at large and my brother experienced threats, violence, the destruction of his person and death in one hour between nine and ten o'clock at night. Afterwards, the criminals went and ate a slice of pizza somewhere in some random place. That shows how easy it is to commit a crime, one that, in this case, might never have been discovered. I agree with any means that can be found to ensure safety.

I would like to come back to a point that was mentioned: the consequences of acts, the application for pardon, are we being too harsh? The poor criminal. I understand that we have a hard time giving power to someone over someone else and that a judge can definitively order a sentence or a punishment for someone. We never liked it when our parents did that to us. But I think we have to put things in order. First of all, there is a consequence that comes with an act; that is way beyond the cause that leads to the acts. It is up to the criminal to find their own rehabilitation in recognizing the cause that led him to commit the acts. Then we become more objective. Then the victims are more reassured.

It is the random aspect that frightens victims and the fact that we feel criminals have more rights, more of a future, than they allowed their victims.

If a doctor makes a medical mistake and their patient remains disabled because of this mistake, their acts will have consequences. Even if the doctor meant well, there will be consequences. We do a lot of things in our life that may destroy our future, that will have consequences. Like in a car accident, the driver at fault has to live with the consequences of his actions.

Let us live first with the consequences of our actions, let us reassure the victim that efforts are made to put in place something objective, accepting that nothing will ever be perfect, and let us work very hard to find ways of helping people to be rehabilitated.

In my opinion, we are a long way behind. For years I have been telling myself that I should be doing more exercise, that it would do me good. But I have not succeeded yet. There are people who want with all they have in them to stop using drugs but who are not able to do so. We have to admit we are powerless. For example, in the Bible, which is often found in courts and used for someone to swear they are telling the truth. Open the Bible, you will see that God himself did not succeed with Cain. All He was able to do was to mark him so as to set him apart from others and to protect him. That is all.

So let us be very humble. I do not reject any means of ensuring the public safety, even if it is only psychological.


Senator Frum: I want to be brief so you understand that you have the unanimous support of this committee and appreciation for the courage to be here. I am particularly impressed that you do so as volunteers in your community. You are incredibly eloquent spokespeople for a community that everyone here cares about deeply. I want to say thank you, along with my colleagues.

The Chair: Colleagues, that concludes this panel. Ms. Marcil and Mr. Wamback, as my colleagues have said we truly thank you. We cannot imagine the anguish all of this has created for you and brings you here today. What you have had to say is extremely important and we appreciate that.

We will continue today's hearing involving our review and consideration of Bill C-10. From the Office of the Privacy Commissioner of Canada, I am very pleased to have with us Ms. Jennifer Stoddart, the Privacy Commissioner. With her is Patricia Kosseim, Senior General Counsel, Director General. Welcome, and we are pleased to have you here.

As well, we have someone we have had before us a number of times and are very happy to have her back today: Sue O'Sullivan, Federal Ombudsman for Victims of Crime. Welcome, Ms. O'Sullivan.

I believe Ms. Stoddart has an opening statement.

Jennifer Stoddart, Privacy Commissioner, Office of the Privacy Commissioner of Canada: Mr. Chair, honourable senators, thank you for inviting me to present the views of Office of the Privacy Commissioner on this bill.

I will be brief. I acknowledge the valid objectives of the proposed amendments and in particular the primary importance placed on the protection of society. If you have invited me here before you, it is because you are concerned that there may be privacy implications flowing from this bill. Therefore I would like to draw your attention to some specific points that could have an impact on the privacy rights of Canadians.

Specifically I want to focus on proposed amendments to the Criminal Code, the Corrections and Conditional Release Act and the Youth Criminal Justice Act.


Let us talk first about the amendments to the Criminal Code. First of all, we welcome the measures proposed in clauses 28 and 29 of Bill C-10. These will extend exceptions to the open court principle to new sex crimes committed against children.

Clause 29 allows a judge to order a publication ban in these cases. I am also pleased to note that, under clause 28, if a judge decides not to exclude members of the public from the proceedings, he or she will have to motivate their decision.

As a society, we need people not to be hesitant to report crimes and testify so as to preserve the rule of law and ensure that crimes are punished as warranted. However, we know that the fear of public exposure can lead to a chill factor that may persuade victims not to report and witnesses to remain silent.

Therefore, allowing for a publication ban and requiring motives for refusing public exclusions — in what can be very difficult circumstances — are positive developments in terms of greater privacy protection for victims, their families and witnesses.


As the Right Honourable Beverley McLachlin, Chief Justice, reminded us in a speech just last week at Carleton University, "Publication bans play an essential role in trials of young offenders, sexual offences and some family matters."

We will go on now to the amendments to the Corrections and Conditional Release Act. Clause 57 of the bill would expand the type of information that could be provided to victims of crime. Under the bill's proposals, victims could gain access to potentially sensitive personal information not directly related to the victim, to the offence committed or to the possibilities of rehabilitation and return to society. Some of the new proposed disclosures include information regarding personal reasons for a planned temporary release and participation in certain programs.

Therefore it is with satisfaction I note that such information is only to be shared where the interests of the victim clearly outweigh any invasion of the offenders' privacy.

Further proposed amendments in clause 64 would allow Correctional Service Canada, CSC, officers to demand that an offender wear an electronic monitoring device. This would enable CSC to track compliance with conditions established in temporary access, work release, parole, statutory release or long-term supervision restricting access to certain people or places.

This may be considered as a technological innovation to quickly detect any violations of certain types of release conditions and to compel offenders to abide by the terms of their release. However, my office received, in 2009, a privacy impact assessment, often known under the initials PIA, of this electronic monitoring pilot program, which was operated at that time on a voluntary consent basis. The PIA demonstrated that electronic monitoring is more a generalized and ubiquitous form of surveillance that can provide highly sensitive personal information that may not be related to enforcing parole conditions.

The pilot program was also inconclusive in demonstrating that electronic monitoring would be more effective than traditional probation measures. I would therefore suggest that it would be preferable to allow this program to continue to operate on a voluntary consent basis under close supervision until evidence of its effectiveness is clearly established.

Should this provision be adopted as is and the electronic monitoring program be rolled out nationally, I would expect to receive a new PIA before implementation as per Correctional Service Canada's express undertaking to my office on that subject.


I would now like to share some thoughts on some of the proposed amendments to the Youth Criminal Justice Act. Let me start with clause 185 of the bill.

This clause would broaden the circumstances, lower the age, and increase the frequency by which the names of some young offenders may be publicized.

It should be noted that in today's Internet and social media age, the mere mention of being accused, let alone convicted, of a crime will follow people around, potentially as long as they live.

From a privacy perspective, it means that if clause 185 were to pass as is, Canadians as young as 12 could be identified, and potentially stigmatized for life by the public.

On a related note, clause 190 would require police to maintain records of all extrajudicial measures, such as community service, apologies to victims and other forms of redress. Today, police officers are encouraged to exercise discretion on whether to keep records of such extrajudicial measures. A requirement to keep records of extrajudicial measures would have the potential to significantly increase the amount of personal information collected, retained, and shared by policy about youth who are not formally charged.


For our last annual report to Parliament, we completed a major review of the RCMP's CPIC and PROS databases. Our report noted that there have been instances where results of criminal record checks were informally shared with outside people, directly circumventing RCMP policy. We also found that data was being kept longer than required.

Clearly there are potential consequences for individuals listed in police records systems. These systems can affect individuals in terms of future travel, school and work prospects.

I would encourage a careful reflection upon the long-term impact of these provisions on the ability of troubled youth to overcome their past and succeed in the future. Is making their names known and keeping detailed records of extrajudicial forms of redress truly necessary, effective and proportional to the otherwise commendable objective of keeping our communities safe?

To conclude, honourable senators, I would urge parliamentarians to consider this bill carefully in light of the potential privacy implications I just mentioned.

Finally, should Parliament decide to adopt legislation that would call for new record or tracking mechanisms to better protect society, it would be paramount to also set out robust controls and limit the collection, use, disclosure and retention of personal information to only that which is appropriate and necessary in the circumstances.

I thank you once again for your attention. I would be happy to attempt to answer any questions you may have.

The Chair: Thank you very much, Ms. Stoddart. We will turn to Ms. Sullivan and then questions from the senators.


Sue O'Sullivan, Federal Ombudsman, Office of the Federal Ombudsman for Victims of Crime: Thank you for this opportunity to speak to you today about this very important bill. Bill C-10 is a large text containing a large number of aspects and issues to be discussed.


Given our limited time today and the role of my office in providing a voice to victims of crime, I would like to focus on providing you with points for consideration in relation to Part 3 of Bill C-10, specifically with respect to the changes to the Corrections and Conditional Release Act, CCRA, that apply to the victims of crime. I will focus solely on those aspects of this bill that have a direct effect on the treatment of victims of crime within the Canadian criminal justice system.

I would like to begin by commending the government for moving forward with the changes proposed on behalf of victims of crime to enhance the CCRA. We have spoken to a number of victims and victim advocates who have fought for these changes for years and who are extremely pleased to see them coming to fruition. The proposed amendments to the CCRA are a positive step forward, and I am heartened to see the momentum building for real change for victims of crime in Canada.

That being said, there are still further changes to be made in order to ensure fair and equitable treatment for victims. The office has been pushing for many of these on behalf of victims since it opened its doors in 2007.

These changes are the subject of my first special report released just last week, Shifting the Conversation, which I provided to all members for your reference. You will see that there are recommendations within the report that will be addressed by Bill C-10, as well as numerous further recommendations either for amendments to Bill C-10 or as next steps in the government's continued work to make victims a priority.

I strongly encourage all members to carefully review the report, and I will be happy to follow up if there are any questions.

From my perspective, three main amendments within Bill C-10 relate directly to the treatment of victims of crime: providing victims with the right to present a statement at parole hearings, removing an offender's right to cancel a parole hearing within 14 days of the scheduled hearing, and increasing the scope of information provided to victims.

With respect to the right to present a statement at parole hearings, moving to enshrine this right is extremely important. In the current system, the imbalance between offender and victims' rights is stark and unjust. Providing victims with more actual legislated rights will help to address this. However, while this is a long-awaited and crucial change for victims, a very important element is missing. Victims are still not being granted the right to attend the hearing. If victims are denied attendance, the right to present a statement in person becomes moot.

We believe that victims, barring any security threats or concerns, should have the right to attend a parole hearing and that this right must be enshrined in law as opposed to simply in policy.

With respect to the second change, the emotional toll of preparing to attend a parole hearing for a victim can be huge, let alone the time required for travel, logistics and more. The ability for an offender to cancel a hearing, even hours prior, permits a lack of consideration for the victim that is simply unacceptable.

Providing a period of 14 days prior allows victims some security in knowing that the offender cannot cancel at the last minute, and it helps to begin to incorporate some elements of consideration for the victim's needs. This change was one that our office recommended in its second report and we fully support it.

Finally, with respect to the last point, it is time we acknowledge that victims are not bystanders in the criminal justice process. They deserve to be kept informed and to be able to plan for their own safety.

Victims want more information about the offender who harmed them in order to understand what steps they have taken to rehabilitate themselves or, conversely, what risk they might still pose.

The types of information added through this bill are very much in line with the kinds of information victims have told our office they want. However, the amendment only goes as far as to make this information available at the discretion of the Correctional Service of Canada or the Parole Board of Canada. We feel that victims should have the right to this information, full stop.

In a system where victims have no recourse if they are denied this type of information, it should be given in all cases and should not be at the direction of CSC or PBC.

I would also add one more item to this list: that victims also be shown an updated photo, upon request, of the offender at the time of his or her release.

While I am encouraged to see these changes being made, further next steps are required to enhance victims' rights and treatment within the system. Victims need more information; they need to be able to participate in a meaningful way in the criminal justice process; and they need to have the tangible supports in place to assist them in the aftermath of a crime.

There are further tangible, practical changes to the CCRA that would have a direct and meaningful impact on victims. Again, I would encourage members to consider including these as amendments to Bill C-10 moving forward. These are listed in the report provided with reference to the specific sections of the CCRA to be amended. Though time does not permit me to go into all of these recommendations, I would like to highlight a few for the committee:

Ensure victims have the right to face their offender by providing them with a presumptive right to attend a parole hearing, unless there is justification to believe their presence would be disruptive or would threaten the security of the institution or individuals.

Provide victims with advance notification regarding all offender transfers between institutions where possible, not just those transfers where an offender is moved.

Provide victims with the choice of attending or observing parole hearings either in person, by video conference, by teleconference or by reviewing recordings of the proceedings at a later date. These options and choices should be extended to all victims and in all circumstances where possible.

Reduce victim trauma and anxiety by giving registered victims the right to listen to recordings of parole hearings, or the opportunity to attend parole hearings via video conferencing or other such remote real time technology.

Hold offenders accountable for the fulfillment of restitution or federal victim surcharge orders by making it an element for consideration in release decisions and where necessary to authorize Correctional Service Canada to deduct reasonable amounts from an offender's earnings to satisfy such orders.

In conclusion, the proposals for amendment to the CCRA included in Bill C-10 make some very important changes for victims, and I support its passage.

However, these changes must be part of a sustained and continual movement to address the wider scope of victims' needs and concerns in Canada. We need to take further steps toward addressing victims' treatment directly and toward rebalancing the justice system so that victims' rights are, at the very least, equivalent to those of offenders.

The criminal justice system exists because of victims, not despite them, and our criminal justice system must reflect this.

The Chair: Thank you very much for that statement, Ms. Sullivan. We will now turn to questions, beginning with the deputy chair, Senator Fraser.

Senator Fraser: I have two questions, both for Ms. Stoddart, and since we are short on time I will try to be brief and I will ask you to be nice and concise.

First, on the matter of the information that Correctional Service Canada is now going to be required to provide to offenders, I understand that you are concerned that some of that information may go more broadly — you know what I am trying to say.

Ms. Stoddart: Yes.

Senator Fraser: It is strictly pertinent to the crime. However, on one of the elements that interested me, do you see here or is there in the Privacy Act in general any provision that would protect the use of that information by the victims? For example, if someone is undergoing treatment for alcoholism, even though that was not a factor in the crime, but the victim is made aware of that program, is the victim then constrained in any way from telling the whole world about that?

Ms. Stoddart: That is an interesting question, senator. I do not think so under the Privacy Act, but I think that underlines our point that there should be a clear application of a test that the need for this information on the part of the victim outweighs the privacy rights of the incarcerated offender, who still retains some privacy rights. Perhaps there could be some mechanisms in those cases where the victim would agree in writing not to pass on that information if it was deemed that this information was relevant to public safety and the victim's interest in the first place.

Senator Fraser: The second question has to do with the publication ban, and the really significant loosening of the requirements for publication bans for young offenders. You talked about the risk of stigmatization, particularly for those at the very young end of the scale of those who are covered by this bill.

Are there any studies to which you can refer us about the impact, again, particularly on very young adolescents, of this kind of publication on them?

Ms. Stoddart: Regretfully I do not think so, senator. That is one of the things we noted in our research. We note that there may be a stigmatization effect and we note that this is one of the major challenges in an Internet society, that now information about you is out there forever. This conversation and this legislation is taking place in a very different context from that of 20 years ago.

The information about someone who is 12 on the Internet now may be there forever, and that is one of the reasons that encourage me to make this remark about the implications of this.

Senator Runciman: Ms. Stoddart, you were talking in your submission here about Canadians as young as 12 being stigmatized if their identities are made public. I may be wrong here, but in reading the legislative summary, it indicates that with this legislation the minimum age at which the court may authorize publication of information on the identity of a young person is 14 at the time of the offence, under both the current provisions and those of Bill C-10. Where does this age of 12 come from with respect to your submission?

Ms. Stoddart: Could I ask the general counsel, who is better versed in that, to answer the question? My understanding was that it is now 12.

Patricia Kosseim, Senior General Counsel, Director General, Office of the Privacy Commissioner of Canada: Thank you for the question. As an implication of opening up the possibility of lifting publication bans to now "violent offences," on our reading of the bill anyway, there is no limitation on the age of potential subjects of that publication. Unless we have missed something in the bill, the age limit there is not evident.

Senator Fraser: As I read the bill, the difference here is that publication bans could now be lifted for youth sentences, and that removes that safety net that used to exist where it really would only happen if you had an adult sentence.

Senator Runciman: Perhaps we can get clarification from the judicial officials on that at some point because certainly the legislative summary indicates that that is not the case.

I would like to make mention too, Ms. Stoddart, that under this summary, which I believe to be the case, for publication to be permitted the Crown prosecutor must satisfy the youth court that there is a substantial likelihood the young person may commit another violent offence and it is necessary to lift the ban in order to protect the public from that risk. The youth court must then consider the basic principles stated in the Youth Criminal Justice Act.

This is clearly not something that will be occurring on a regular basis, but where the Crown can make the case that the release of this name is critically important in terms of public safety. I think these will be rare occasions, but it is giving the court the opportunity to at least recognize the public safety concerns related to these isolated cases. That is something you should perhaps consider.

Another issue you raised was the electronic monitoring and your concern with respect to electronic monitoring. I want to give you an example of a situation in Toronto a couple of years ago. I was in the legislature at the time. An individual who was granted bail, and never should have been granted bail in my view and in the view of many, subsequently was confined in house detention and is now before the courts charged with the murder of two women in a neighbouring home.

Those are cases especially where electronic monitoring may not have prevented the alleged crime but certainly has a deterrent effect with respect to potentially violent offenders. It seems to me if you talk about doing this on a voluntary basis you are defeating the purpose. The people who agree to the voluntary monitoring are not the people who pose the greatest risk to society. Do you have anything to say about that?

Ms. Stoddart: Yes, one would tend to agree with your logic. However, looking at the facts that my office could observe in their privacy impact assessment of the pilot test in 2009, unfortunately, over a wide number of offenders who participated in this program and a wide number of incidents, the use of electronic monitoring bracelets does not seem to be as trustworthy and as reliable as one would expect. The work we did in looking at the privacy impact assessment led us to have a lot of concern about the unreliability of the technology up until now.

It is in that context that I made those remarks to you, not that we would not as a society like a very sure and reliable way of tracking people who are dangerous offenders. Given that it is unreliable, given that then it may send back wrong or incorrect signals and may allow the commission of a crime, for the moment I say it would be better to do this on a consent basis. Perhaps, as the technology may become more perfected in the future, it would be possible to come back at that.

Senator Runciman: We agree to disagree on that one. I think when we are dealing with electronic monitoring we are talking about offenders who remain under sentence but they have been released. I believe you have acknowledged in the past that someone under a federal sentence has a diminished expectation of privacy. Is that correct?

Ms. Stoddart: Yes, certainly.

Senator Runciman: Ms. O'Sullivan, I did have a question for you. I was talking about and we heard Senator Boisvenu talking about a national framework. I think you were here to hear his submission with respect to that. Do you have any views related to that? Do you feel it is the way that perhaps we should be going in the future?

Ms. O'Sullivan: Unfortunately I did not actually have a chance to listen to his comments, but I have had many occasions to meet with Senator Boisvenu to discuss issues.

Really what we are talking about here is looking at the way forward. We need to look as a country at ensuring we continue to move forward in enhancing the rights of victims and their treatment within the criminal justice system.

Some of the challenges that come in actual fact, as everyone here is aware, the actual services to victims of crime are a responsibility of the provinces and territories. Therefore we do need to be strategically planning together at different levels of government to ensure we are respecting everyone's mandates. We must ensure that we truly have and are planning forward to consider those connections amongst the roles of provinces and territories when we want to really make sure that victims are treated with respect. As I indicated in some of my comments, victims should not be bystanders in this process and their voices need to be heard. In other words, victims must have the supports they need when they need them, and that is the responsibility of all levels of government. The more we can do to coordinate and be thinking strategically to do that is a good thing.

Senator Runciman: You talked briefly in your submission about the right of victims with respect to parole hearings, and we heard the bar associations yesterday disagreeing with the 14-day period. Obviously, from a victim's perspective, you think this is the right way to go with what the government has incorporated in this legislation.

Ms. O'Sullivan: There are a couple of things on parole hearings, and as indicated in my comments here, we talk about the presumptive right to attend parole hearings. Also, regarding the information that we are asking to have for victims about offenders — and many Canadians may not be aware of this — any Canadian can apply to attend a parole hearing as an observer. If you do attend a parole hearing, a lot of the information we are asking to be given under the CCRA is available at the parole hearing. In other words, that information is already out there. We are asking that the information that could be available to anyone who attends a parole hearing as an observer be actually put in legislation and enshrined so we can have consistency in terms of what information can be legislatively given to victims.

In terms of victims and the 14 days, many people may not be aware that a victim's statement is not just about the day of the parole hearing. A victim must, in some cases years in advance, wonder whether the offender will apply for parole. If the offender does apply for parole, the victim has to go through months of all the emotion that goes with trying to write it down and be able to articulate the impact that this crime has had on them. To go through all of that and, as it has happened, have some hearings cancelled when victims have literally been en route to the hearing is quite unacceptable.

Some victims will tell you that 14 days is not long enough. I should be able to plan my life and not have to wonder, with 14 days, at the last minute that this can be cancelled. However, 14 days is an initial first step. When you talk about the rights and the respect of victims within the system, they have to plan their life around the dates for parole hearings. In many cases 14 days is a good start, but in many cases it should be longer.

Senator Runciman: Do you have a view with respect to changes — this is not incorporated in the legislation, I do not believe — in earned release and the correctional plan for federal inmates? A previous witness testified that one of the individuals responsible for the murder of her child was refusing to take sex offender courses in the federal system. The concept is and the corrections officials feel that it is really critically important in terms of rehabilitation that you have a correctional plan and that there is participation before you can justify an early release. Does your organization have any views with respect to that?

Ms. O'Sullivan: When it comes to offender management, I know you have had people with the right expertise present in front of you, and I would defer to their expertise on that.

One of the things about the correctional plan that we are happy to see in this is the fact that restitution is considered a part of the correctional plan. I am going to defer to the expertise of people who are in the business of offender management.

Senator Baker: I would like to congratulate the witnesses for their very excellent presentations.

My main question, given the limitation on time, would be to Ms. Stoddart and to congratulate her on her recent intervention concerning the RCMP's CPIC and PROS databases, and the fact that the results of certain criminal record checks were disclosed, as you put it, circumventing RCMP policy.

Then you go on in your presentation to say:

Clearly there are potential consequences for individuals listed in police records systems. These systems can affect individuals in terms of future travel, school and work prospects.

You are absolutely correct. However, if you were to ask Senator Dagenais about the criminal records check or the databases they would use in the province of Quebec, he would come up with their own databases that are administered by the Quebec police forces. You go to British Columbia, and they have their own databases. There are 10 to 12 databases that are interchangeable across the country, so when a police officer or somebody else swears out an information to obtain a warrant, they make use of those databases. CPIC and PROS form a small part of the information solicited by police forces.

The Criminal Records Act, as we had previous testimony before this committee, applies only to federal institutions and the Commissioner of the RCMP. The suppression of criminal records, therefore, under the Criminal Records Act applies only to federal databases.

It raises the question that you raised about privacy and the effect on individuals, so you would have to admit that your influence, restricted jurisdiction to federal institutions, is only a small part of the whole picture and perhaps does not fairly represent the intent of the Criminal Code.

Ms. Stoddart: Yes, honourable senator, you are quite right to point out that jurisdiction for various parts of the justice system is shared, and that is why the administering of police records, including criminal justice records — and there are also civil police issues — is a topic that is frequently discussed with my provincial colleagues. There is a huge amount of information sharing across Canada and a huge amount of reciprocal access to these various network police databases. They are increasingly networked, so the issue of exactly where the information in that context is, then, becomes less and less relevant because of the very widespread access rights that are necessary with a mobile population and for faster and more efficient law enforcement.

Senator Baker: Do you see any solution to this problem? I think it is a serious problem, in view of recent decisions of the Supreme Court of Canada, in a case called R. v. McNeil to expose the disciplinary records and criminal records of police officers who are involved in investigations, making them available to court for cross-examination purposes and other reasons as well. It is a serious problem in that a criminal record is no longer subject to suppression in our society because of the proliferation of these databases, and you do not have the jurisdiction and we do not have the jurisdiction to do anything about it.

Ms. Stoddart: Yes, it is a huge problem, and it comes back to the impact of the electronic age on information about people and how that can be used against them long after they have paid their dues in whatever context it is or moved on with their life in a non-criminal context.

That is why we encourage not only privacy impact assessments in the design of these network databases but also training and sanctions for employees who misuse them, and that traditionally has been a challenge.

Senator Baker: At the federal level.

Ms. Stoddart: At all levels. Provincial colleagues will say the same thing.

Senator Baker: You did a great job with CPIC, but nothing is in place to do a job on another police database, in Newfoundland, for example.

Ms. Stoddart: I believe my Newfoundland colleague will be talking about that. Certainly, I was Quebec commissioner for a while, and this was a subject of concern because of the extent, depth and sensitivity of the information in police databases, so the good husbandry of these databases is essential.


Senator Boisvenu: Thank you, Mr. Chair, I have a question for each of the two witnesses. First, thank you very much, it was very interesting. Ms. O'Sullivan, good morning. I did indeed get a copy of your report and I invite all the senators around the table to read it. It is a very high-quality report and I am convinced that your tenure as ombudsman, which I hope will be a long one, is really going to advance victims' rights in Canada.

The question I would ask you, because I have gone through your report and, in many places, the recommendations you make seem to be found in large part in Bill C-10. But there are certain things you would like to see added. Could you come back to the things you would like to see added?


Ms. O'Sullivan: Thank you very much for that opportunity.

In our report, we make many recommendations, but there are five in particular that directly we would like you to consider as an amendment to Bill C-10.

First is to amend subsection 144 of the CCRA to provide victims a presumptive right to attend a hearing, unless there is a justification to believe their presence will disrupt the hearing or threaten security institution; second, to amend section 142 of the CCRA to allow victims the opportunity to listen to recordings of hearings or, where possible, to attend and observe parole hearings in person, by video conference, teleconference or other remote real time technology; third, to amend subsections 26(1) and 142(1) of the CCRA to provide Correctional Service Canada and the Parole Board of Canada discretion to show a photo of the offender to a registered victim; fourth, automatically provide all information that is currently considered discretionary under the CCRA to registered victims, except in cases where is it may threaten the safety of an offender, individual or an institution; fifth, to amend subsection 78(2) of the CCRA to authorize the Correctional Service of Canada to deduct reasonable amounts from the offenders earnings to satisfy any outstanding restitution orders.

We would ask you to consider those amendments to Bill C-10.


Senator Boisvenu: Should these amendments not be adopted by the committee, we can work together in the future to include them in some legislation.

Ms. Stoddart, I have a question. I read your report and I was a bit surprised. You talk about electronic bracelets or at least electronic monitoring devices, that they should be left up to the criminal's discretion, to their voluntary consent, that is. You talk about identifying young offenders, that it is against the Charter. The Canadian Charter of Rights and Freedoms, in one of the first sections, talks about the right to protection and the safety of citizens.

My question for you is, in your personal and professional opinion, what is more important in Canada: protection of the public or a criminal's right to anonymity?

I do not think a criminal is entitled to anonymity. In matters of criminal law, the public interest and victims' interests must take precedence, to the extent that it is not linked to the treatment of the alleged criminal.

When Bill C-10 talks about publicizing a young offender's identity, which in Quebec would be from 16 to 17 years of age, it includes some young people for whom rehabilitation is almost impossible and who represent a risk to society. I ask you the same question. What should take precedence? Is it the protection of society or the right of a 16- or 17-year-old who is regarded as dangerous to remain anonymous?

Ms. Stoddart: My response is the same, senator. You invited me here as the Privacy Commissioner to talk to you about aspects of protection of privacy. In this context, let me emphasize that the law must be enforced very carefully because of the effects that, in today's society, with the Internet, the publication of names of young people may have.


Senator Jaffer: I would like to follow up with what my colleague Senator Boisvenu was saying. There is a reason why we treat young offenders differently from adults. We, as a society, as Canadians, have come to the reasoning that a young person should get another chance; a young person makes mistakes at the age of 16 that they may not make at another time.

What has really concerned me — and I had not thought of this before — it is, of course, true that anything that goes on the Internet is there forever, so we will not be able to protect our young people. You have raised this, and I will ask you again. This puts aside all the things we have ever talked about in terms of how to protect young people. If it is on the Internet, it will be there forever. The stigmatization will be severe.

Has your office considered how we can prevent this? You have said some things, but I would like you to expand on it.

Ms. Stoddart: I am not here as a criminologist, and I am not saying that there may not be extraordinary circumstances in which some young people, unfortunately, have committed offences against others and against society that are of such gravity that it may be appropriate to name them.

I am simply here to say that, as a general rule, a tendency towards enhancing the naming of young people has very big consequences in today's society, consequences that it did not have when we first elaborated these laws a generation ago. I think we have to look at each case on its merits.

Senator Jaffer: I have a question for Ms. O'Sullivan. I thank both of you for the presentations you have made.

One of the things we heard yesterday from the Canadian Bar Association and from the Barreau du Québec was the issue of lack of resources. My concern is that with the lack of resources when Bill C-10 is implemented, the first people who will get hurt will be the victims, because there will be fewer resources to help victims, especially through the court process. I would like your comments as to what your office will be doing to educate us all, as well as the judiciary and the court system. We cannot let go of the few rights that victims have in the court process.

Ms. O'Sullivan: Part of our mandate, as you know, is to take complaints from victims of crime in relation to their treatment. Part of my job is to make recommendations to government in terms of changes to legislation, policy and programming that could better meet the needs of victims of crime. Also, my mandate is to educate policy-makers and lawmakers in relation to the issues and concerns.

One example of that is here today, to provide this opportunity to the lawmakers to be able to bring the voice of victims to the table. I know that many victims have presented in front of the committee as well.

At the end of the day, we are saying that there are provisions within Bill C-10 that do directly impact enhancing victims' rights and the treatment of victims. We are also here to say that we would encourage you to look at further recommendations in our report as an amendment to Bill C-10.

Our job is to bring that information to the table. Many changes and recommendations happen within the criminal justice system. What we are trying to do is not about taking things away from others but about making the legs of the stool equal, which will have a cost attached to it. We need to do the right thing to ensure we can put in place enhanced rights and treatment of victims within the criminal justice system. Yes, there will be costs attached to that. However, like anything, when there are costs, you have to pick priorities.

Senator Jaffer: One of the concerns I have is that sometimes you are saying it is victims versus the offender. I do not always think they are competing, because rights of victims stand on their own and they should be given proper rights. It is not that either the offender or the victim gets the rights.

Ms. O'Sullivan: You are exactly correct, and that has been the message that our office has been saying. This is not an either-or. If we want a healthy and safe Canada, we need to consider all aspects of the continuum — that is, prevention, early intervention, enforcement, correctional systems — and all the follow-up that goes on after that. Absolutely, this is not an either-or. It is exactly the message we are saying.

Right now, if you look at the legs of the stool in this country, when it comes to the rights and supports that are in place for victims, it is a very small piece. We need to ensure that treatment and rights start to become equitable.

Senator Frum: Thank you to our witnesses.

I am sorry to keep hammering on this. In response to the answer you gave to Senator Jaffer just now about balancing the extreme cases where revealing the name of a youth offender is in the public interest versus not in the public interest, and given what Senator Runciman read into the record about what the statute actually says on this matter, that the name can only be released when it is deemed that you have a violent offender and when the Crown asks and the judge agrees, is not what the law says precisely what you just suggested would be right to do? In other words, does Bill C-10 not get this right?

Ms. Stoddart: I have to look at the exact wording of Bill C-10. I will not say whether or not the bill gets it right, because again I think it takes great experience in the criminal law to opine on that with accuracy. I would simply draw to your attention the privacy implications. That is why I am here, because you want to know about the privacy implications of what this bill says.

This new provision, then, will have the impact of lessening privacy implications in certain cases. I say to you that I do hope this will be exercised with caution and discretion, and that this honourable chamber could monitor it over the years to see the impact of this.

The idea behind it — again to reply to the question of another honourable senator — is whether there is a body of literature saying that if we do this, it will hugely benefit society, rehabilitate the individual, and make communities safer for us. My office could not find it. In looking, then, at the impact of that article, yes, it does have an impact on privacy rights.

Senator Frum: Thank you.

Ms. O'Sullivan, in your presentation you focused on the elements of the bill that you think satisfy victims' needs. I would ask you to address one of the more controversial parts of this bill, namely, the increased sentence lengths for crimes. Can you address that from the victims' perspective? Does that make any difference? Is the lengthening of sentences important to victims or is that secondary to their other needs and concerns?

Ms. O'Sullivan: I think the answer to that is that for some victims, sentencing is hugely important. You have heard victims speak about the importance of sentencing at all levels of government. Others have different priorities. For victims, it really comes from the issue you are addressing.

For example, you have heard many victims speak publicly about the fact that they cannot understand why their loved one is deceased and the offender is back out on the streets in a short period of time. For some, that is a huge issue. For others, their focus is on making change in other areas. For example, some may have a focus and priority around implementing the Missing Persons Index here in this country, where they can reunite found remains with families. There are different priorities for different victims. For some, sentencing is a huge issue, but we try to focus on the ones that have a direct impact on the treatment and enhancing their rights.

The Chair: Thank you. As I said earlier, colleagues, it is absolutely essential that we be in the chamber at 1:30 today, and we will have to end this panel at 1:15, so if you could keep that in mind.


Senator Joyal: Ms. Stoddart, I would like to come back to the presentation in which you refer to the assessment of the electronic monitoring pilot program. Is the report you received public or is it private, in which case we would not have access?

Ms. Stoddart: Treasury Board guidelines provide that agencies and departments should publish a summary of their Privacy Impact Assessments (PIAs) on line.

From what I understand, Correctional Service Canada has not yet published the results of that assessment. Sorry, they have published it.

Senator Joyal: So we could have access to a summary of the report?

Ms. Stoddart: That is right, they have finally published it.

Senator Joyal: We could ask them about it when they appear before our committee.

Can you give us some examples of some highly sensitive information that is not necessarily associated with the application of conditions of release?

Ms. Stoddart: Again, not being a criminologist or an expert in correctional services, I thought, for example, that certain medical conditions or medical treatments that are not relevant to the act for which someone has been imprisoned, for their rehabilitation, etc, do not need to be publicized. Their general health records, for instance, and perhaps also their relationships with members of their family, people with whom they have close relationships inasmuch as this does not have any impact on public interest or their rehabilitation.

Senator Joyal: You referred to clause 190 of the bill, indicating that a police force must keep a record of any extrajudicial measures it takes with respect to any adolescent. Usually, when we have to broach the question of retaining information pertaining to an individual, there is always the possibility for a concerned citizen to have access to the record and to ask eventually for the record to be destroyed after a certain period of time, once the person has shown that they are totally rehabilitated.

Let us imagine a 14-year-old who is subject to some measure or other. Twenty years later, this record would, in practice, remain in the police archives and might end up on-line somewhere and harm the person's chances of getting a particular type of work or other services that might require a spotless reputation.

In short, for that individual, this would indefinitely prolong the application of extrajudicial measures, whereas, where judicial measures are concerned, the record might have finally been erased.

Ms. Stoddart: Yes, that is right.

Senator Joyal: So he would remain penalized in practice by the record that the police forces would continue to hold without being required to give it to him or to destroy it.

Ms. Stoddart: That is right. That is the scenario I am talking about.

Senator Joyal: So practically there would be an additional punishment for this person, created by this provision without any chance of remission. Is that what you are telling us?

Ms. Stoddart: That is right. I think that eventually, later, the person could ask for access to their information and ask for some parts to be cancelled. There are rules, in any case, that govern the keeping of records. I think that the reality for a lot of young people is that they live their lives without thinking about looking at what is in their records.

So this idea of creating a record by extrajudicial measures, where the person did not appear before a judge, with things entered by the police, which once again this person must drag around a bit like a ball and chain, whatever their life becomes afterwards. This is a consequence that affects their privacy and I wanted to stress it for you.

Senator Joyal: And there is no strict requirement to destroy this information after a sufficiently long period of time for the person to show that they have corrected their ways and resumed their normal activities?

Ms. Stoddart: Yes, there is a requirement for information in police records that is no longer current or relevant to be destroyed periodically, though I do not remember the exact length of time.

As shown in our recent annual report and also in our audit of the RCMP exempt data bank, which contained information gathered after September 11 on Canadians possibly suspected of terrorist acts, police forces often neglect to conduct this clean-up on time or fully, in our experience.

Senator Joyal: You are saying that, on the basis of what you saw in the RCMP, provincial police forces might be in a similar situation.

Ms. Stoddart: It is reasonable to suppose that they have the same challenges as the RCMP in meeting their requirements to clean up their records.


Senator Lang: I just want to refer to the Privacy Commissioner as well, if I could, and it is in respect to the electronic monitoring.

Earlier today we had evidence provided to us that, from 1975 to 2002, 481 Canadians were murdered by convicted murderers on parole. Those are staggering figures when you add that all together.

I want to follow along in respect to the question of the privacy impact assessment that you referred to in electronic monitoring, and along the lines of what Senator Runciman brought up. I do not understand the logic of why you would recommend to this committee that such a policy or procedure should be voluntary as opposed to mandatory.

The legislation is very clear. This service "may" demand in section 64. Obviously they require an individual to wear such a device because they are concerned about public safety.

It seems to me — and I would like you to comment on this — that it would behoove the Privacy Commissioner to say this would be a better way to go, from the point of view that this is discretionary, the decision will be made by those who are fully knowledgeable about the individual in question and, at the same time, it will allow, at least to some degree, some comfort to the general public and victims.

I am wondering, when you recommended this particular course of action to continue a voluntary process, did you fully take into account the public interest from the point of view of public safety, and also those victims concerned about such a release during that period of time?

Ms. Stoddart: Thank you for that question. I can only answer from the perspective of the Privacy Commissioner. I believe others can inform you about the other perspectives.

Senator, you began your remarks with an amazing statistic about something like 485 murders committed by people on parole. I am not familiar with that statistic, but I think the basic question is, "Why were they on parole?"

In that context, what I am trying to bring to your attention is that what we discovered in doing a privacy impact assessment on this electronic bracelet is that more than a dozen years after we started some experiences in different places in Canada with this, this is a far-from-sure mechanism, according to what my office can see. It is not accurate. It sometimes fails. It has a myriad of problems that I could perhaps write to this committee on, if you would like to know more about what we found out.

Given that it reported inaccurate information and a whole range of information about the whereabouts of the person to whom the bracelet was attached, which was not necessarily relevant to his or her rehabilitation, public safety, et cetera, and given that it was hugely inaccurate and there were cases where a person was somewhere, where it was part of parole conditions not to be and, because it was so inaccurate, they were there but this device was reporting inaccurately — that is, given on the one hand that it is invasive of privacy and given on the other hand that it is seen from our office in doing this that it is not reliable — I put to you that the use of this device from my point of view would rather be on a consent basis. I am not saying therefore let people out. I am saying knowing the device is far from accurate at the present time, the question should be this: Is this person allowed out on parole and is this person a threat to the community? From what I read, these devices are not a fail-safe way of ensuring public safety.

The Chair: Senator Lang, we will have to move along so that everyone has an opportunity. First round will be the only round because we are short on time.


Senator Chaput: My first question was asked by Senator Lang, but I have a second, quite brief one.

I am not sure this is the place to ask it, but since I am frequently asked this question, I will ask it here. Is the protection of privacy a right or a privilege?

Ms. Stoddart: It is a right for Canadians, but one that changes a lot depending on the circumstances.

Senator Chaput: So this right could be suspended or lost depending on the acts we commit?

Ms. Stoddart: Yes.

Senator Chaput: Thank you.

Senator Dagenais: I have a small comment to make to reassure the senators concerning the Quebec Police Information Centre, which I have used for a very long time. Yes, an audit is conducted and, in recent years, use of the centre has been very restricted even for police officers.

I would like to come back to the electronic monitoring device we hear so much about. I understand that, at present, you are not satisfied with the monitoring program because you say it may either disclose personal information or harm privacy. Of course use of a bracelet must be voluntary.

Am I to understand that in the future — because I imagine that it is going to be made more effective — if it is demonstrated that there is not any risk to privacy, you would agree to the voluntary aspect being removed from the wearing of a bracelet?

Ms. Stoddart: That is a good question. The possibility of walking around with a bracelet on protects privacy more than being imprisoned. If the technology changes, our answer might be affected. I asked for a privacy impact statement by Correctional Service Canada. If they go ahead with this program and it is approved by legislation, we will look at the technology and see what the tests tell us at that time.


The Chair: Thanks to the cooperation of the final two senators, we have a couple of moments. I know I did cut Senator Lang off, but if you have one short question, you may ask it now.

Senator Lang: I am fine.

The Chair: Thank you for that.

Honourable senators, that concludes our questions.

Senator Fraser: I have a request, if I may. Ms. Stoddart said she was willing to provide information about the electronic tracking devices. I nodded strenuously at her, but may I please make that request formally?

Ms. Stoddart: We would be happy to send that to you.

The Chair: Once again, thank you. We have had you before us on a number of occasions and your presentations are always thoughtful, thorough and extremely valuable.

Colleagues, we will adjourn and reconvene next Wednesday at 4:15.

(The committee adjourned.)