THE STANDING SENATE COMMITTEE ON
LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Thursday, February 9, 2012
The Standing Senate Committee on Legal and
Constitutional Affairs, to which was referred Bill
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 10:30 a.m. to give
consideration to the bill.
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
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
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 parl.gc.ca
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
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
Senator Boisvenu: Senator Boisvenu from Quebec.
Senator Runciman: I am Bob Runciman from Thousand Islands,
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
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
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
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
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 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
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
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
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
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
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
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
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
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
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
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
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
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
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
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,
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
But, 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
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
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
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
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
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
This clause would broaden the circumstances, lower the age, and
increase the frequency by which the names of some young offenders may be
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
To conclude, honourable senators, I would urge parliamentarians
to consider this bill carefully in light of the potential privacy implications I
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 for Victims of Crime, 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
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
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
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
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
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
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
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
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,
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
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.
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?
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.
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
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?
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Ms. Stoddart: That is right, they have finally published
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
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
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
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
Senator Lang: I just want to refer to the Privacy
Commissioner as well, if I could, and it is in respect to the electronic
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
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.)