Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 28, Evidence - March 26, 2015
OTTAWA, Thursday, March 26, 2014
The Standing Senate Committee on Legal and Constitutional Affairs, to which
was referred Bill C-32, An Act to enact the Canadian Victims Bill of Rights and
to amend certain Acts, met this day at 10:30 a.m. to give consideration to the
Senator Bob Runciman (Chair) in the chair.
The Chair: Good morning and welcome, colleagues, invited guests and
members of the general public who are following today's proceedings of the
Standing Senate Committee on Legal and Constitutional Affairs. We're meeting
today to continue our study of Bill C-32, An Act to enact the Canadian Victims
Bill of Rights and to amend certain Acts.
This is our second meeting on the bill. As a reminder to those watching,
these committee hearings are open to the public and also available via webcast
on the parl.gc.ca website. You can find more information on the schedule of
witnesses on that same website under "Senate Committees."
For our first panel today, we welcome, from the Office of the Federal
Ombudsman for Victims of Crime, Sue O'Sullivan, Federal Ombudsman for Victims of
Crime; and from Victims of Violence - Canadian Centre for Missing Children,
Sharon Rosenfeldt, President.
Ms. O'Sullivan we will start with your opening statement, to be followed by
Sue O'Sullivan, Federal Ombudsman for Victims of Crime, Office of the
Federal Ombudsman for Crime: Good morning, chair and members of the
Thank you for inviting me here today to discuss Bill C-32, the Canadian
victims bill of rights. The Office of the Federal Ombudsman for Victims of Crime
helps victims individually and collectively. Individually, we speak with victims
every day, answering their questions and addressing their complaints.
Collectively, we help victims by reviewing important issues and making
recommendations to the federal government on how to improve its laws, policies,
or programs to better support victims of crime.
I have provided copies of my remarks to the committee, as well as
documentation that outlines my recommendations on the victims bill of rights.
Given time constraints, I won't discuss all of my recommendations, but I will
highlight a few amendments that I believe are needed to strengthen the bill.
This bill recognizes the tireless work and effort of the victims and victim
advocates who have fought for change in Canada for many years. I commend the
Government of Canada for seeking the participation of victims in developing this
bill, and I would hope to see a similar approach taken in the future on other
significant policy or legislative changes affecting victims of crime.
This bill marks a significant achievement, but it needs to be strengthened to
more effectively address the full breadth of victims' needs and concerns.
To strengthen the bill, the rights of victims must be enhanced throughout the
criminal justice process, starting at the time of crime through the courts and
through to post-conviction and conditional release. My recommendations aim to
further strengthen the treatment of victims in terms of their rights to be
informed, considered, protected and supported.
One of the most basic rights we would expect a victim to have is the right to
information. This bill provides victims the right to request information about
the justice system, their role within it and the services and programs available
to them. This would include the right to receive information about the
investigation and proceedings and certain information about an offender or
While the bill provides for increased rights to information, it does not
outline who is responsible for providing that information to victims at
different points in the criminal justice system.
I recommend that victims be automatically provided, at the time of crime,
with clear information about their rights under the bill, including what
information they are entitled to receive, who is responsible for providing it
and at what point. Furthermore, victims should be able to receive this
information in the format of their choice.
Victims also want information about the status of offenders as they serve
their sentence. The victims bill of rights does provide victims with rights to
information about the offender, yet with some simple amendments it could be more
responsive to victims' needs and concerns. For instance, the bill gives victims
automatic access to a recent photograph of the offender, prior to parole or
conditional release. I would recommend this should also apply in cases where the
offender is on an escorted temporary absence pass.
The bill does not provide sufficient measures for recognizing and addressing
the importance of providing victims with choice and options. For example, there
are no provisions providing victims with options for how they may wish to attend
parole hearings in order to accommodate either their personal circumstances,
which may make it difficult to travel, or their anxieties and fears that may
make attending a parole hearing in person impossible.
I recommend that the bill be amended to provide victims with the right to
choose how they attend a parole hearing and/or present a victim statement, be it
in person; by video or teleconference; via closed circuit television; or through
the use of other secure, reasonable and available technologies.
As well, under the bill, victims may listen to an audio recording of a parole
hearing in cases where they are unable to attend.
I recommend that victims should have the option of listening to audio
recordings of hearings regardless of whether or not they attend. This is
unnecessarily restrictive. We have heard from many victims who were able to
attend a parole hearing in person but who found the experience so taxing that
they could no longer recall all the details of the hearing. These victims should
also be afforded access to the audio recordings.
During court and parole hearings, victims want opportunities to have their
views heard and considered, particularly in relation to safety and security
concerns. This speaks to victims participatory rights. The victims bill of
rights states that every victim has the right to convey their views about
decisions to be made by the appropriate authorities in the criminal justice
system that affects the victim's rights and to have those viewed considered.
The victims bill of rights provides victims with the additional right to have
their safety concerns considered at bail hearings. While this provides victims
with increased rights to participate, the bill does not provide victims with a
mechanism to convey their views and to have them considered by a court. The
victims bill of rights also provides measures to help ensure that victims are
informed of a plea bargain in cases of serious personal injury, offences or
murder. Informing victims of a plea bargain is helpful in some respects;
however, victims have clearly identified the need to have their views considered
before a plea is entered and/or accepted by the court.
This is not to suggest that victims should have any veto powers over plea
bargains. Rather it would ensure that victims can exercise their right to convey
views prior to decisions being made by appropriate authorities in the criminal
The victims bill of rights provides measures to enhance the safety and
security of victims at trials, including protecting victim information and
identity during trial and testimony, allowing testimonial aids such as a support
person, and allowing the victim to read a statement outside the courtroom.
Similar considerations should be applied to ensure the safety and security of
victims at parole hearings. Presently victims are not guaranteed separate and
secure waiting areas to avoid contact with the offender at parole hearings. I
recommend that appropriate measures be established in order to protect a
victim's sense of safety when attending parole hearings, such as safe and
separate waiting areas.
With respect to supporting victims, the victims bill of rights would require
judges to consider making a restitution order in all cases. Where victims do not
receive their full restitution, they would need to go through civil court to
have the remaining amounts paid. Restitution is part of the offender's sentence.
The onus should not be on the victim to take steps to collect the monies owed to
them. I recommend that a collection mechanism be put in place that would
alleviate the responsibility for the victim to pursue outstanding restitution
In terms of enforcement, the victims bill of rights requires each federal
department or agency in the criminal justice system to have a complaint process
for dealing with breaches of rights.
Where victims are not satisfied with the results of these complaint
processes, they may file their complaint with an authority that can review
complaints in relation to that department or agency. Our recommendation to
strengthen the bill speaks to two approaches to enforcing either participatory
or service rights. These two approaches differ based on the nature of the right
and the point of the process where it applies: time of crime, court, or
corrections and conditional release or parole.
In the context of service rights or rights to information, the use of
internal complaint mechanisms may adequately protect victims' rights provided
these mechanisms are subject to proper oversight. I recommend that any authority
with jurisdiction to review complaints have investigative powers to compel
federal government departments and agencies to produce information and documents
relevant to a complaint and to recommend remedies on specific complaints, as
well as systemic issues. I would also recommend that victims should have access
to legal representation to address the court, in order to exercise or enforce
their participatory rights under the victims bill of rights.
Legal representation is already allowed in determining access to the personal
records of victims in cases of sexual assault. This does not mean that victims
have "party status," but rather that victims would have the ability to address
the court only on matters directly related to the rights in this bill. Some may
argue that this would delay the courts and hinder the process of a fair and
equitable trial. But I have not found evidence of this in other jurisdictions
where victims have access to legal representation to address the courts, as is
the case in several states in the United States. Providing victims with a
mechanism to address the courts would help to ensure that the process fairly
considers and protects everyone's interests. Treating victims fairly and
ensuring their meaningful participation is critical to increasing public
confidence in the criminal justice system and improving the system's overall
The true test of this bill's strength will be measured in how well it
responds to the needs of victims. The bill was amended to include a
parliamentary review of the bill five years after coming into force. This review
should not be limited to assessing how well government is complying with the
bill but should also ask what difference this bill has made for victims. To
accomplish this, Parliament must now consider what performance measures need to
be in place to assess the benefit of the bill to victims. What outcomes can this
bill expect to achieve, and how can they be measured? Building in measures for
evaluation in the bill will provide parliamentarians with the information they
will need to determine whether the bill is meeting the intended objectives.
I recommend that the committee consider including roles and responsibilities
for compliance reporting and evaluation. This, in turn, would allow Parliament
to better assess the reach and impact of this bill of rights, as well as to
identify how it could be strengthened to better meet the needs of victims of
In conclusion, I believe that Bill C-32 is a positive step forward for
victims of crime in this country. The bill contains a number of measures that
will help to improve the system for victims of crime and help to ensure that
they are informed, considered, protected and supported. At the same time, many
of the measures contained could be further strengthened to ensure that victims
are treated fairly throughout the criminal justice process.
Thank you for your attention and I look forward to your questions.
Sharon Rosenfeldt, President, Victims of Violence - Canadian Centre for
Missing Children: Good morning, members of the Senate committee. Thank you
for inviting our organization, Victims of Violence, to present on Bill C-32, An
Act to enact the Canadian Victims Bill of Rights and to amend certain Acts.
Victims of Violence was incorporated as a national organization on November
27, 1984, 30 years ago. Part of our mandate is to provide support and assistance
to victims of violent crime as they make their journey through Canada's justice
system. Needless to say, it has been quite a journey, mostly positive, and an
important lesson we learned was to be very patient. Good things will happen when
they are supposed to happen, and, of course, that is why I am here today. We
view Bill C-32 as a well-thought-out piece of legislation, which is fair and
responsible for where we are at currently in Canada, in relation to being more
responsive to victims of crime and their vast array of needs, concerns, services
and sometimes complex issues.
Since we do not have lawyers who can analyze this bill in a professional
legal manner, I am going to present to you in the manner I know best.
Thirty-three years ago, when we reported our son missing to police, they told us
that they would not take his name for 48 hours because he had just turned 16.
Perhaps he was a runaway. That no longer happens in Canada. When we took his
picture to newspapers, they said they could not print it as police wouldn't
authorize it. That no longer happens in Canada. When his little body was found a
month later, I was informed by telephone. I fainted. That no longer happens in
Canada. When I asked how he died, I was told it was from a blow to the head. I
asked if he was found with his clothes on or off. I was told they could not give
us this information. However, I found out from the headlines in the newspaper,
days later, which had my son's picture on the front page and which said that his
nude, raped, bludgeoned body had been found by a person walking his dog. That no
longer happens in Canada. When I wanted see his body to make sure it was my son,
the police told us which funeral home his body was at. When we arrived, the
funeral directors were shocked to see my husband and me and questioned who had
sent us there. We said the police, so they took us into a separate room and had
to explain to us that we would never recognize our son as his remains had to be
scraped up and placed into a glass bottle. That no longer happens in Canada.
When the killer was caught and charged, we learned by way of watching the news
on television, which showed the killer's picture and 11 children. My son's
picture was one of them. That no longer happens in Canada. When we, the
families, had the one and only meeting with the Attorney General and the Crown
prosecutor, due to the controversial $100,000 cash for bodies plea bargain deal,
the prosecutor looked at all of us and said, "Look, I don't know why you are all
so upset. The 11 children could have just as easily been killed in a school bus
accident. I mean, if they're dead, they're dead." That no longer happens in
I share this with you only as an example and to let you know that although
there have been great strides to change what took place with our family and many
other families across Canada over the years, Bill C-32 now enshrines in federal
legislation the "right to information" in sections 6, 7 and 8 of the Canadian
victims bill of rights.
Further, that example is what is meant by the wording in the preamble, which
states that, in particular, victims of crime and their families deserve to be
treated with courtesy, compassion and respect. These are not just nice, hollow
words; they have true, long-term impact on the direct victim and/or the victim's
family if their loved one has been murdered. When Canada first adopted the
United Nations Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power, the declaration stated that victims should be treated with
courtesy, compassion and respect for their dignity. I identified with those
words so much because it explained to me the lack of personal respect for my
dignity as to the way we were treated by the various components in the justice
system. I had been so severely injured, in particular by the lack of respect for
my dead son's dignity in the manner in which his case was handled. He could no
longer speak for himself, so I took on the lack of respect for his dignity and
combined it with mine. That is why, when we buried him, I felt burning shame and
could not hold my head up, and I promised him that I would not return to his
grave until I could stand before him with my head up and with dignity.
It took 16 years to return to his grave. Throughout those years, there were
many more victims and victim advocates speaking out, and governments were
beginning to listen to what we were trying to explain as it relates to those
words. Those feelings of lack of respect for their dignity have been coined "the
second injury" and/or re-victimization, when victims are dealing with the
criminal justice system.
However, what was most significant was that at Clifford Olson's
faint-hope-clause hearing in Vancouver, the RCMP invited all of the families
into a room at the courthouse and made a formal apology to all of us for the
manner in which we had been treated. They informed us that, throughout the
years, positive changes had been made in the manner in which they dealt with
crime victims and missing persons, et cetera. On our way home to Ottawa, we
stopped in Saskatoon, where our son is buried, and we went to Daryn's grave with
our heads held high. A sense of respect for my dignity and respect for my son's
dignity had begun to return.
Somewhere between 1988 and 2004, the word "dignity" has been taken out and
shortened to just simply treating victims with respect. It seems to be more on
federal documents and websites as some provinces still maintain the words
"respect for their dignity." We would like to see the federal Canadian bill of
rights changed back to the original intent of the wording in the United Nations
declaration of basics principles. I know that may seem like victim talk from the
walking wounded, as some of us have been referred to, but the words "respect for
their dignity" indicate strength and have significant meaning to victims of
crime. I have noted that the House of Commons final amendments included this
recommendation, and I hope the Senate committee will continue to consider the
meaning behind the word "dignity."
I'm going to cut mine short due to lack of time as well. We view the Canadian
victims bill of rights as the first step in beginning to develop a national
framework for treatment of victims of crime across Canada. The Office of the
Federal Ombudsman for Victims of Crime could help to create a national standard
or framework for victim services and operate as a partner for regional offices
or provincial victim ombudsmen, to help to ensure that the national standard is
encouraged. Of course, there is the issue of provincial jurisdiction. However,
this is an area where concerns should be put aside to work together. It is not a
question of the federal government telling provinces that this is what you have
to do, so why would the provinces not want to have the best victim services
program we could have in Canada? To be clear, the Office of the Federal
Ombudsman for Victims of Crime could work hand in hand with each province and
territory and develop that framework and standard of service across Canada.
Whether the Canadian victims bill of rights would accomplish this, of course,
remains to be seen. We would like to see consistency in the provision of
services across Canada.
In closing, I have two final remarks. One is to recognize and acknowledge
Correctional Service Canada and the Parole Board of Canada, which have worked
diligently for the past number of years to accommodate victims of crime, since
post-conviction plays a large role in our justice system as it relates to
victims of crime.
The second is to recognize and acknowledge the Office of the Federal
Ombudsman for Victims of Crime as well as the ombudsman, who has had many
consultations with victims of crime and held a large forum, which included many
victims, victim service providers and others from across Canada in relation to
the creation of a federal victims bill of rights for Canada. Our ombudsman is
highly respected by victims of crime.
The Chair: Thank you both. We will begin questions with our
committee's deputy chair, Senator Baker.
Senator Baker: Thank you to the witnesses. I would like to
congratulate Ms. Rosenfeldt and to bring to the attention of the committee that
her request that the words "including respect for their dignity" is now included
in this bill on orders of the minister. When you read the sentence you read
"whereas victims of crime and their families deserve to be treated with
courtesy, compassion and respect," and you ended it there, but you would be
pleased to see that in this final publication of the bill that it doesn't stop
there. There's a comma, and then it says, "including respect for their dignity."
That's what is in the bill. There's nobody around this table who would disagree
with the inclusion of those words, ordered by the minister himself at the final
stages of the approval of the bill.
So I want to congratulate you on that wonderful occasion. Now, going to the
ombudsman, Ms. O'Sullivan, I believe you are proposing that a presumptive right
be included in the bill for victims to attend parole hearings.
Ms. O'Sullivan: Yes.
Senator Baker: Did they incorporate that in the bill?
Ms. O'Sullivan: They have a right to give a victim statement at a
parole hearing, but they didn't. You should have a presumptive right. We do add,
recognizing that if there was a threat to either a person or an institution,
there would be exigent circumstances. Absolutely, victims should have a
presumptive right to attend at a parole hearing.
Senator Baker: You didn't mention that in your address, but it was my
understanding that this was one of the main points from the beginning when the
bill was being devised. The other main point that I understood, and correct me
if I am wrong, is that in all victims rights bills you look at outside of
Canada, there is always a clause that guarantees the victim a statement of what
their rights are under the act. I believe that you are one of the first persons
who brought this to the attention of the government when this bill was being
drafted, to include that in the bill. You also didn't mention that in your
presentation. I'm wondering, is that correct? Am I right that you advocated
Ms. O'Sullivan: Given the limited time, I chose a couple of examples,
my recommendations. I know all of you are aware of the many reports we have done
on this. There are a couple of things to look at when it comes to victims'
rights. When you look around the world at different countries, for example, the
United States, there are over 30 states that have legislation around victims'
As you are aware, they have the right to make constitutional law at the state
level. You may have heard that the 28 countries of the European Union are in the
process of implementing their directive, which is basically a bill of rights
specific to service rights. When you look at the ability of victims who access
these rights, there are service rights and participatory rights. Depending on
what point you're at, all of us talk about this continuum, time of crime,
through the courts, post-conviction, conditional release. It depends on where
For example, at the time of crime — I'm going to speak on your right to
information — this bill says "upon request." Our position is that at time of
crime, when a victim reports to the police, they should automatically be given
their rights. There are many examples we can refer to on this. For example, in
California they call it Marsy's Card. Oregon has a card.
Senator Baker: What is that?
Ms. O'Sullivan: It's a card you give to a victim that says you have a
right to information, a right to be notified about —
Senator Baker: Why isn't that in the bill? You advocated it.
Ms. O'Sullivan: That question would have to be answered by the two
committees both at the house and here. I would certainly support an amendment to
that effect from this committee.
Senator Baker: Just in conclusion, because I have to be very quick as
we are out of time, you mentioned an important point at the end of your
presentation, and that was the five-year review. You can't do a five-year review
if you don't have the information pertaining to the matter to do it properly,
and I think this was your point. Could you elaborate on that?
Ms. O'Sullivan: Thank you so much for that question. We have an
opportunity. I look at this as a positive. I will use one example. As people are
probably aware, the one survey we have nationally that gets information directly
from victims is the General Social Survey. It's done once every five years, and
it will be released this year at some point. Following the release of that
report there is a consultation period. We have an opportunity to be asking, with
the next survey that's going to be done during this consultation — should this
become law — whether the questions being asked are still relevant or whether we
want to take this window of opportunity to look, given what the victims bill of
With this bill, there are also huge data gathering points we can be asking
agencies about. I realize and this would be more for the RCMP, but for other
provincial police services as well. For example, this says there will be a
common victim impact statement. This says there will be consistent restitution
forms. I'm using those as two simple examples of potential data gathering points
we could be looking at.
I would argue that one of the opportunities we have right now — because I
know there could be burden on people for doing these when we talk about
measurement — is an opportunity to do a feasibility study. What would be some of
those pertinent data gathering points? At the federal level, we already have an
opportunity because we have over 7,000 registered victims.
We have these opportunities now so that when Parliament has to do that review
five years from now, you will have the key data you need to make those choices
and to do that review.
Senator Boisvenu: Thank you, Ms. Rosenfeldt, for your presentation. We
are always very pleased to see you. I congratulate you on the work you have been
doing not just for years, but for decades.
In fact, it is because of your efforts that we have this bill of rights. I
completely understand your recommendations but, in my view, the Canadian victims
bill of rights would evolve over time. Some people view it as an end — meaning
that they want to get as much as they can, a little like a big chocolate cake —
and others view it as a tool that will evolve over time and improve. I fully
agree with your recommendations, and they are consistent with what victims want.
However, do you not believe that over the course of one, two, three or four
years, as the Canadian victims bill of rights is applied, those things will
happen? The main objective of the Canadian victims bill of rights is not just to
change technical elements of the judicial process, but to change the mentality
of those who work in the administration of justice and the professionals in that
area? What do you think?
Ms. O'Sullivan: Thank you for the question. There are two issues here.
The recommendations I have before the committee today, in my opinion, come from
speaking to victims, victim advocates, professionals.
I'll use the example of a victim. The way this about bill is written, it says
that for a victim of serious personal harm or murder, the judge, upon accepting
a plea, will consider or must inquire as to whether or reasonable steps have
been taken to inform the victim or the families.
My point is this, and I do not want to dismiss in any way the great work of
many Crown attorneys who do meet with victims ahead of time. I have had
opportunities to talk to Crown attorneys associations, and I do not want to
dismiss the great work already going on in this country by Crowns who do.
My point is that victims should have a right to be heard. I am not suggesting
a veto power. This bill says that a victim has a right to be heard and to have
what they want to say be conveyed. By meeting, and again many Crowns already do
this, but it should be a right that they are listened to. It's interesting;
there are some victims who may have a position.
It provides also, when you have an opportunity to talk to the Crown about a
potential plea bargain ahead of time, you're also hearing the reasons behind
that and why this is so important that they are heard. At the end of the day the
victim may not agree with the final decision of the Crown attorney, but we know
from research that if they've been heard and have had an opportunity to
participate, it is directly related to their satisfaction in the criminal
justice system. This is about confidence in the criminal justice system. That's
just one example of some of those recommendations.
Senator Boisvenu: Take the example of the National Parole Board and
the way victims can testify. One of your recommendations is to let victims
choose whether they wish to provide testimony by videoconference, correspondence
or in person.
The National Parole Board has evolved since 2002, and now that victims are
better integrated into the hearing process, do you not believe that this bill of
rights will ensure that in two, three or four years' time the board will make it
possible for victims to choose the manner in which they prefer to testify?
Ms. O'Sullivan: Once again, I don't want to dismiss the evolution and
great work happening with Correctional Service Canada and the Parole Board of
Canada. I meet with representatives on a regular basis to discuss ongoing
issues. We still get complaints from victims about process. Once again, I think
it goes back to my comments.
This is not to take away from the great work from both the victim services
workers, the regional workers, both with the Parole Board of Canada and
Correctional Service Canada. At the end of the day it shouldn't rely on the
goodwill of an organization that you have a right to have the choice and options
of how you attend a parole hearing. That's my position and recommendation.
There is a lot of, as you would say, cultural change happening. We're not all
the way there yet, because obviously we're still getting complaints. Having said
that, the willingness of these two agencies, we have good, open lines of
communication and regular meetings with them to convey what the issues and
concerns are, so it shouldn't be on the goodwill. They should have a right to
have these choices.
Senator Hervieux-Payette: I have two questions: one is for Ms.
O'Sullivan and the other for Ms. Rosenfeldt.
Did you provide your recommendations to the House of Commons? Were some of
your recommendations adopted? I did not read the report by the House of Commons.
I would also like to address the issue of compensation and legal aid. When I
consulted the federal government's site, I noticed that the victim compensation
programs are very different from one province to the next. There is the
impression that victims are better served in some provinces than in others,
which is ridiculous. The services provided to victims do not seem to be
consistent. If a victim lives in a province that provides next to nothing,
that's too bad. However, in other provinces, such as in British Columbia, a
victim can obtain up to $25,000.
Ms. Rosenfeldt, as the parent and victim of a child's death, did you receive
compensation? Did you apply for it? From now on, will all parents who lose a
child receive compensation for the loss of a loved one, for having one of the
dearest beings in their lives taken from them?
Do you recommend there would be compensation and also some services provided
to the parents?
Ms. Rosenfeldt: Absolutely. For family members of victims of homicide,
today across Canada we have the odd number of victims of homicide that come
together and we have a little support group. It's always due to lack of funding.
As far as criminal injuries compensation goes, we never were compensated in any
manner, actually, other than eventually after about five years, I believe, after
many requests, we finally received I believe it was $2,500 back for funeral
We left the province of British Columbia about a year and a half after our
son was murdered, because our two younger children who were 9 and 11 at the time
were struggling in Vancouver. This case was so high profile and we had a lot of
problems. We moved back to Edmonton, Alberta. That's where we had originally
lived, and we were in dire need of counselling, our children and us. But we
asked the Province of British Columbia compensation if they would help us and
they said no, they couldn't, because we were not in the province of B.C., and
Alberta couldn't help us because the crime didn't happen in Alberta. That still
exists today, although I must say that crimes compensation has gotten better.
A lot of problems with crimes compensation started years ago when the federal
government cut off the transfer payments to provinces, and I believe that was
about 1993. The rationale for cutting off the transfer payments was because of
the newly legislated victim fine surcharge. The government of the day at that
time thought that the federal victim fine surcharge would bring in enough funds
that each province would be able to use some them for compensation.
What did happen is there are provinces that do not have any compensation
programs at all. Why I'm so happy about having a federal victims bill of rights
is because this is the component that has been lacking in Canada, to be able to
try to create this framework. I'm not so sure that our ombudsman — I made these
recommendations but it's only so that we have an idea, this committee has an
idea of how important this bill is so we can move on and start putting together
things in Canada like a national framework so that if you are victimized in the
province of Ontario, you should get pretty close to the same services in the
province of Alberta and/or criminal injuries compensation. Right now there is so
much disparity, not to say that there hasn't been very good work done, but I'm
really counting on this bill.
Senator Batters: Thank you very much for being here, both of you.
Ms. Rosenfeldt, I was so pleased that Senator Baker pointed out that respect
for their dignity is now included in this because Minister MacKay ordered that.
You did that. That is your legacy and your son's legacy, your son who is laid to
rest in Saskatoon, in my home province of Saskatchewan.
I have another more substantive question but I wanted to ask you what your
son's name is, and I thought it was important to get that on the record.
Ms. Rosenfeldt: Daryn.
Senator Batters: Ms. Rosenfeldt, do you agree with the provision in
the victims bill of rights of releasing an updated picture of the offender to
the victim for them to know what that person who has harmed them looks like
before they're released? If you agree with that, why do you think that is
Ms. Rosenfeldt: Absolutely I agree with that. Throughout the years
we've had various victims who have run into offenders, and some of them didn't
even know they had been released. We, throughout the years, have been more
responsive to those types of issues. But if you have an offender who has been in
prison for a number of years, a lot of times they cut their hair, they grow a
beard, start weight lifting and they come out looking totally different.
Therefore, I think it's really important for the victim, as far as knowledge, to
know what this person looks like nowadays, but for security purposes as well.
Senator Batters: I note that your opening statement was very well
written, and you didn't have time to read it all. I would like to read for you.
It was in was a paragraph that says that the Canadian victims bill of rights act
is a significant piece of legislation that seeks to create statutory rights at
the federal level for victims of crime for the first time in Canadian history
and the fact that the bill is a quasi-constitutional document is profound. The
bill specifically states in clause 2 that it is an act for recognition of
victims' rights, which means the federal government has acknowledged that crime
causes harm, loss and injury to people, to individuals, not just the state.
That was very well said. I wanted to get that in for you.
Ms. O'Sullivan, there are those in the legal community, most of them defence
lawyers, who contend that victims already have an adequate voice in our legal
system. How do you respond to that assertion? Has that been your experience and
the experience of those victims of crime that you've met?
Ms. O'Sullivan: That's not been my experience from the victims that
I've heard from and from victims' advocates. I think the recommendations we are
putting forward here are reasonable. They are respectful of the adversarial
process. We set the precedent in 1988. We gave victims the right to give victim
impact statements in the Criminal Code. This bill is now going to ensure that a
judge must consider restitution.
There are those two areas: the ability to use your voice, as the bill says
you have the ability to be heard and convey your safety and security issues at a
bail hearing. Yet, there is no mechanism to do that. The victim can't address
the court. As we know, the Crown does not represent the victim; and that time to
be heard, prior to the plea. Again, I'm not suggesting a veto.
Those are two examples where the bill says your voice should be heard, and I
linked that to the confidence in the criminal justice system because that is
what I have heard from victims.
This system is designed as an adversarial system. It is to respect all
rights. I think some of the recommendations that we're making, and I purposely
mentioned the word "delay." I've talked to victims' rights lawyers. I've talked
to the National Crime Victim Law Institute, in Oregon, which has had these in
place. What they're finding is that having the right to have legal
representation with victims is actually expediting the system. It makes sense.
They're meeting with the victims ahead of time. They represent the victim and
the Crown does not. So they're going to sit down with Sharon and have a
conversation about what can be in a victim impact statement at sentencing. Here
are your rights. What are your safety and security concerns? They tell me they
have that conversation ahead of time, and there would be the district attorney.
At the end of the day, it's a judge's decision as to whether a person is
released on bail or not. To know that the victim may not want them released, but
if they are released then I would be concerned about some geographic boundaries.
With that information there ahead of time, they are finding is that it is
actually expediting. The recommendations that we are making here are specific to
allow a victim to exercise those rights that the bill says they have.
The Chair: I have five senators left who wish to ask questions.
Witnesses as well, I know it's challenging, but if you can tighten up your
response as well.
Senator Joyal: Thank you both for your presentations.
Ms. O'Sullivan and Ms. Rosenfeldt, both of you have commented about the way
to seek redress, if those four rights are not respected — Ms. Ms. O'Sullivan, on
page 9 of your brief, and Ms. Rosenfeldt, on page 3. Ms. O'Sullivan on page 9,
I recommend that any authority with jurisdiction to review complaints have
investigative powers to compel federal government departments and agencies
to produce information and documents relevant to a complaint, and to
recommend remedies on specific complaints as well as systemic issues.
It seems to me that this bill is compelling as it has a system to seek
redress and get an order when one of those four rights has been violated.
Unfortunately, when I read section 25, 27 and 28 of the bill, I don't see
that the mechanism is strong enough to get an order to seek a redress.
I don't want this document to be a pious wishes list. A charter normally has
a process through which a person who is aggrieved can get redress. If the system
or the process to get a redress doesn't have teeth, doesn't have a legal order
attached to it, then we can all pray and wish for the best. But we will let the
victims be frustrated again that when the right is not respected, they can't get
an order to have the redress done.
Unfortunately, when I read section 25(1) and 25(2) and the other sections, 28
and 29, there is no legal mechanism strong enough to allow Ms. O'Sullivan to
order a redress. Otherwise, we're still in the realm of recommendation, of pious
wishes, depending on the goodwill of the administration of the services
concerned. It is essential that your recommendation on page 9 be the object of
an amendment to this bill and to be sure that this bill means business, as much
as the rights of victims are concerned.
Ms. O'Sullivan: This bill contemplates as a remedy, when it comes to
service rights, so I will use information at the time of the crime, a complaints
mechanism, as it does currently as my office has the mandate to investigate and
take complaints and look for resolution. There is a remedy in that sense. But
when it gets down to the participatory rights, and that's why we have the
recommendation with regard to, I'll call it very limited standing, these issues
specific to the rights that the bill says they are.
In other countries, they actually have a parliamentary ombudsman who has the
ability to make recommendations and to give financials. We're having
conversations because this bill, should it be made law, will probably mean that,
because there will now be internal complaints systems for the Parole Board of
Canada and Correctional Service Canada. I'm having discussions with the
minister's office because they would go there first instead of coming directly
to us. We would still take that complaint, but there has already now been an
internal investigation by that agency. One thing we bring to the table is
independence, and I think that is hugely important. But more than that, we're
continuing to have those discussions because we would then be in a review
capacity on that internal complaint and what that's going to look like. So we
are having continued discussions on that.
When you look internationally, that is always one of the issues, which is the
strength of the ability to seek remedy for the victim.
Senator McIntyre: Thank you both for your presentations. You have done
your research on this topic.
Ms. O'Sullivan, the Federal Ombudsman for Victims of Crime, as I understand,
is responsible for addressing complaints by victims only, with respect to the
process set in the Corrections and Conditional Release Act. In your view, should
the ombudsman's mandate be extended to include complaints related to the
criminal justice system in general?
Ms. O'Sullivan: Thank you for pointing that out. My mandate is
specific to complaints of victims of crime, in relation to federal programming,
policy, legislation and agency. You are correct that the authorities rest with
the provinces and territories in terms of the majority of issues around service
Having said that, that would not be a decision for me to make. That would be
a discussion for government. Provinces do have complaint mechanisms. Manitoba
has an ombudsman's office, and a piece of legislation that identifies which
organization — police, corrections, courts — is responsible for providing what
information to the victim. If they're not satisfied or feel there has been a
breach, then there is an ombudsman's office at that provincial level. These
would be the discussions that I would encourage the federal government to have
with the provinces and territories.
We cannot forget the challenges in some of our remote and rural communities
in this country and the uniqueness that provinces and territories each have in
knowing their own communities. We haven't talked about the fact that for some
cases, the judge and prosecutor fly in and so does victim's support, and then
they fly out.
Senator McIntyre: You have the power to make recommendations, but
those recommendations are non-binding.
Ms. O'Sullivan: That is correct.
Senator McIntyre: In your research, were you able to compare Canada to
other countries, such as France, the United Kingdom and the United States, with
respect to recognizing the rights of victims of crime?
Ms. O'Sullivan: Yes, I have. The example that I provided to the
committee, without going into it again, would be the example of some of the
states in the United States. I also work and have looked closely at the EU
directives and follow and monitor that with Victims Support Europe. I recently
had the opportunity to attend something with Ireland, which the European Union
has to implement by November 2015, so it's a huge opportunity for us to look at
those other countries because they're facing the same challenges around
Senator Fraser: Thank you very much, Ms. Rosenfeldt; it's always a
privilege to hear from you.
Ms. O'Sullivan, I'm coming back to the same section of your presentation that
Senator Joyal referred to, but not quite the same question. You recommend that
any authority with jurisdiction to review complaints have investigative powers
to compel federal government departments and agencies to produce information and
documents relevant to a complaint.
Do you have that power now?
Ms. O'Sullivan: I do not. I rely on the open lines of communication I
have with organizations to get that information.
Senator Fraser: It is in the nature of any institution, particularly
bureaucracy-type institutions, to protect themselves.
Ms. O'Sullivan: What I can say is we have investigated many complaints
and have worked with Correctional Service Canada and the Parole Board of Canada,
and we have not had any significant challenges in getting information.
Sometimes, like many federal organizations, time is an issue because they're
As I say, we meet regularly because part of making change for victims of
crime goes beyond legislation. Ensuring the key participants in the criminal
justice system can be mobilized and sensitized to what these issues are is in my
mandate; so we have seen changes working with the regular communications.
I know yesterday Commissioner Don Head and Richard Clair were here from PBC,
and they talked about the victim advisory committee meetings. I had an
opportunity to present to the Prairie committee just this week. So there is that
continued ongoing input they're seeking in terms of making a policy, be it
commissioner's directives or policies.
There are many ways our office looks to work with those agencies to create
that change. When you look at Howard Sapers, the Correctional Investigator, I do
not have those abilities. That's the discussions that needs to be had if this
bill is implemented.
Senator Fraser: I think you should have them.
Ms. Rosenfeldt: As a crime victim advocate organization, and many
others, that is what we have been asking for for a long time. Let's put some
teeth into our ombudsman and make it similar to the Correctional Investigator.
Hopefully she will have that power once the implementation stage comes about.
We're keeping our fingers crossed. It's difficult for our ombudsman to say
that, but as a community we are really recommending that.
Senator Plett: Thank you to both of you for being here. Ms.
Rosenfeldt, we can't even imagine what you have gone through. Thank you for
Ms. Rosenfeldt: You're welcome.
Senator Plett: Ms. O'Sullivan, the victims bill of rights provides the
opportunity to have a support person be with the victim for their testimony and
when they present their victim impact statement.
Could you give us a short version of what you think the impact of this is
positively, if you would?
My next question is to both of you, but certainly I want to hear Ms.
Rosenfeldt's answer. You have put a number of recommendations forward both at
the house and here, and knowing that it's March 26 today, knowing that the house
will rise in the middle of June, knowing that there is an election in October,
anything that is not passed dies on the Order Paper. In light of all of that,
given the chances of doing amendments and getting them through the House of
Commons and back here prior to an election and prior to this dying, are you
happy with the bill the way it is? Would you rather see this go through than die
on the Order Paper without the amendments?
Ms. O'Sullivan: With regard to the question you posed around the
support person, I think this is a critical piece. As you know, many victim
services across this country provide support to that. We have seen some
examples, one used the other day. I had the opportunity to be in Calgary
recently, and you are seeing services introduce things like therapy dogs for
victims. You are seeing the recognition that this definition could be expanded
beyond "support person."
When we start to see common sense being used in these things, because at the
end of the day we can never lose sight of who has suffered the harm and loss
here, when it comes to our criminal justice system being able the recognize
that, all of the recommendations that our office has made we think are
reasonable in relation to what you're talking about, to ensure their voice is
The Chair: I will have to interrupt you. Can you answer the question?
Ms. O'Sullivan: I thought I was. With regard to the support piece,
it's a critical piece.
The Chair: Senator Plett asked a fairly direct question.
Senator Plett: You would rather see this bill go through.
Ms. O'Sullivan: I think that's a decision for the committee. My job is
to bring my amendment. I leave that to the committee.
Ms. Rosenfeldt: As a victim of crime who has been around for a long
time and has seen things move in a very slow manner at times, on behalf of our
organization, we would be comfortable with it in the manner that it is, other
than one area, and that would be in the plea bargain, that situation that our
ombudsman spoke about. We would like to see it where the victims would be
informed prior to there being a deal already made with the judge. If that is not
possible, we are happy that the victim will be informed to the best of the
ability of the Crown prosecutor, bearing in mind we know all kinds of things can
In my opening statement, I did say that we view Bill C-32 as a
well-thought-out piece of legislation which is fair and responsible for where we
are at currently in Canada in relation to being more responsive to victims of
crime and their vast array of needs. Certainly there is a lot more that can be
done. I'm hoping that if it is passed, as our ombudsman explained, the five-year
time frame will be further steps forward.
Senator McInnis: Thank you for being here. I have a very quick
observation and a question. Ms. O'Sullivan, I'm listening to your
recommendations, and I read the items that you wanted enshrined in legislation.
Picking up on what Senator Boisvenu said, many of these things will evolve.
Many of these requests and recommendations are policy matters. For example, a
waiting room, if you are attending a parole board hearing, that's a matter of
the deputy minister or the minister in charge or the head of the parole board
making a policy decision that there will be a room for a person to wait in.
Listening to hearings in the way you do it, whether it is audio or not be
present, or whatever, these are policy matters. Many of these things it would be
surprising to have enshrined in legislation. You would always like it, but they
Yesterday the Minister of Justice mentioned that the tangible and intangible
costs of criminal offences in Canada, captured in a study done in 2011 although
it picked the year 2008, was $100 billion a year, 83 per cent of which are costs
that were borne by the victims.
That was staggering to me. What I'm wondering is how effective the
restitution orders and the victims seeking some remuneration will be, and how
does an offender pay when they're incarcerated? I believe that this restitution
order will be a judgment that can be pursued in the civil matter, and I also
understand that, Ms. O'Sullivan, your office will be funneling money to the
province — or the federal government will — to set up a system of collection
because now they have to pay 15 or 20 per cent.
Ms. O'Sullivan: Very quickly to restitution, I would refer to one
example: for five years, Saskatchewan has had in place restitution coordinators.
This bill allows for them to represent that victim. Now, there is a section of
the bill that does that.
I have permission to say this publicly on a certain portion of this: When
they sit down with an offender and work out those payments, they have a
collection rate of 76 per cent. There is another area where perhaps offenders
don't want to participate. I don't have permission to use that data publicly,
but they are having some success with that as well because it is the provinces
and territories that have those schemes in place. For example, they have the
ability to garnish wages, those kinds of things. Victims don't. I'll stop there.
The Chair: Thank you very much again to both of you. It has been
helpful to the committee's deliberations.
For our second panel today, we welcome, from the London Abused Women's
Centre, Megan Walker, Executive Director; from the Criminal Lawyers'
Association, another familiar face, Michael Spratt, Member and Criminal Defence
Counsel; and from the John Howard Society of Canada, Catherine Latimer,
Executive Director. Welcome all. We will begin with opening statements.
Megan Walker, Executive Director, London Abused Women's Centre: Thank
you for the opportunity to appear before you today. We're very grateful.
The London Abused Women's Centre provides counselling, advocacy and support
to women and girls over the age of 12 who are victims of men's violence, and
this includes intimate partner violence, sexual violence and women and girls
being prostituted and trafficked.
We see first-hand at the office the incredible pain and suffering of women
and their children when they are victimized, but we are also incredibly inspired
by their courage and strength as they try to move forward toward a life of
freedom, peace and healing.
The London Abused Women's Centre supports this bill and asks that it be
passed. We know that some individuals have come forward to request amendments.
We believe that at the five-year point we can look at best practices and at the
procedures, and if there's a need at that point to make amendments, we can do it
My comments specifically today will address the importance of four clauses to
victims: clauses 14, 16, 17 and 25.
We know that in the province of Ontario, the conviction rate for domestic
violence assaults is 1 per cent of those cases that go to trial. We must
recognize that most sexual assault and domestic violence victims will never call
the police or enter into the criminal justice system. Many of them feel shame
and blame for being in the situation. Some live daily in fear that their abusive
partner will fulfill their threat of killing them or their children, and we see
that across the country.
We know that women are most at risk of serious injury or homicide at the time
of separation. The criminal justice system is terrifying to victims. They fear
retaliation by their abusers, especially if that abuser is defending himself and
cross-examining the victim.
We are told consistently by victims and criminal justice service providers
that victims are more likely to appear in court and access the justice system
when they are supported. They require a support person who is present and close
by to the witness to help address their trauma and to let them know they are not
alone as they bravely take the stand.
Victims also disclose that out of fear they would perjure themselves or fail
to attend a trial if they felt they had to be cross-examined by their abuser.
Fear of abusers prevents victims from testifying. More victim testimony will
happen if they don't have to face their abusers in court by way of
We also know that the courts move very slowly, and the longer it takes to
move through the courts, the more likely it is that the abused woman will either
not appear or will plead in advance with the Crown attorney to drop the charges.
Some women have moved on in their lives by the time their case comes to
trial. Others have gone through counselling, as have their abusive partners, and
they have reconciled.
In London right now, Superior Court is taking approximately one year before
it gets to a preliminary trial and two years before it gets to the final trial
stage. Provincial courts are taking anywhere from 9 to 15 months before they
hear cases. We must not do anything that's going to further slow the process
We are aware, as we just heard, of some of the advocacy efforts that are
pushing an amendment to allow victim status as an intervenor in some of the
proceedings. This would have huge unintended negative consequences for women and
make it much more difficult for them to ever access the courts. It would further
backlog and delay the court proceedings, and there are huge costs associated
We heard from one of our senators today that Minister MacKay brought forward
the cost to victims of $100 billion. What we do know is that the tangible social
and economic costs of criminal offences in Canada are approximately $31.4
billion. We cannot support any more costly action that will delay the process.
We are extremely supportive of clause 17 that will allow witnesses under
certain conditions to testify anonymously. Justice must ensure that every victim
has a voice. When victims are prevented from testifying due to fear, there is no
justice, and allowing a witness to be anonymous does not mean that that witness
cannot be cross-examined, and there is a judicial process to go through before
that is even allowed.
We have heard reports of a move to create an external adjudication process.
Again, this is not only a costly duplication of bureaucracy, but we believe it
is completely unnecessary in addressing victim concerns and complaints.
We do support federal departments and agencies in reviewing the issues and
believe they are best equipped to address complaints and concerns, provided they
are given clear expectations as to their roles.
Victims need a complaint mechanism that is well understood, transparent and
accessible. Victims must be provided with information, including around the
complaints process, and contact information at their very first point of access.
We also believe that every single victim service partner from across this
country should be provided with similar information that can be posted online
and provided directly to the women and victims they are working with.
This is the first time in about 20 years of my career that I have ever seen a
government give so much attention to victims, and in my case particularly women.
We saw strong action last year with the passing of Bill C-36. We are about to
embark on another process with the life means life, and now we have this very
comprehensive victims bill of rights. We ask that you support this and support
it very quickly. Thank you.
Michael Spratt, Member and Criminal Defence Counsel, Criminal Lawyers'
Association: I'm here representing the Criminal Lawyers' Association. We are
a non-profit organization comprising over a thousand criminal defence lawyers.
We've been granted standing to participate in many significant criminal
appellate cases and other judicial proceedings, and we are routinely asked to
provide input by various parliamentary committees, such as this one, and I thank
you for the opportunity to attend before you.
We support legislation that's necessary, modest, fair, constitutional and
supported by the evidence. Let me just say at the outset that victims aren't an
abstract concept to criminal defence lawyers. We know that victims are real, and
indeed we see their struggles in our criminal justice system first hand. For
this reason, the CLA does not take issue with many aspects of this bill. Indeed,
many of the rights set out in this bill simply codify what are already practices
that we see in our courts, and there can be no dispute that that is a good
thing. That said, there are aspects of this bill that cause us great concern,
and it's for those reasons that the CLA is unable to support what could have
been — and can be, I suppose — a very useful piece of legislation.
It's clear from prior testimony, and indeed from my interactions with
victims, that one of the main concerns that victims have is the glacial pace of
the criminal justice system. One of the most conspicuous features of this bill
is the increased participation for witnesses and complainants by being able to
personally bring a variety of applications in the course of the criminal
proceeding. These applications currently are generally brought by the Crown,
The concern I have about adding additional procedural steps to what we
already know is a strained judicial system is that it will simply delay matters
— trials and pleas — by days, weeks or months. Delay is already real; it's
already a problem. Just yesterday, a Brampton Superior Court judge blasted the
ridiculous delays in that jurisdiction. Trials, we know, can take years to
complete, and we know that puts an extraordinary strain on witnesses, victims,
complainants and, indeed, on accused people who live under the shadow of the
The reason for this is not because accused people have too many rights or
that trials are somehow too fair. Courts and litigants struggle to do the best
they can with the constraints of the justice system as it currently stands. What
we suggest is not more laws but more funding, more funding for courts, for
litigants and for victims. I suggest that would benefit everybody, and the
legislative downloading of costs doesn't help anyone.
The second and most important point I would like to make today is about
clause 17 of this bill. I have no doubt that everyone here believes in fair
trials, and yet this provision will result in unfairness. This provision, of
course, adds a new section to the Criminal Code which allows witnesses to
testify anonymously, and not just anonymously. Importantly, it allows for the
non-disclosure of information that could lead to the identification of that
witness. This is another application that a witness can bring. This is an
application that can be brought at any time during the proceeding, mid-trial,
delaying matters; and it's an application that, by its very nature, would have
to be ex parte. What would be the point of bringing an application to be
anonymous if the defence counsel were present?
The characterization of this section by the government has been a little bit
misleading. This isn't merely a pseudonym provision, as some of the previous
cases have dealt with. This isn't a case that's comparable at all to the
protections given to confidential informants. And, of course, clause 17 would
have no benefit to domestic cases at all where the complainant and the victim
would of course know one another.
It's not an exaggeration to say that this change is a significant departure
from the standard of the Canadian criminal justice system that we have come to
expect. Some might say, and indeed I say, it resembles a type of Star Chamber.
The Star Chamber, of course, was outlawed hundreds of years ago.
We already have systems in place to prevent the publication of witnesses'
names. We already have systems in place to make sure that accused persons are
not able to personally cross-examine a variety of complainants, including those
complainants from a domestic relationship.
This new provision where the identity of a witness could be prevented from
being disclosed by an ex parte hearing, and information about that
witness would be prevented from being disclosed, is simply unconstitutional. I
should note that this is a concern shared by the Canadian Association of Crown
Of course, the answer is that judges will be the gatekeepers; judges will
have discretion — a supremely ironic point and justification coming from this
government, which has systematically reduced judicial discretion. Now somehow it
is being relied upon as a cure-all. Judges as gatekeepers shouldn't be the
answer, because this issue is so important that the gate shouldn't be left open
It's hard to imagine a more fundamental change to Canadian law and one less
consistent with Canada's vision of open and fair justice, where everyone has a
chance at a fair trial and everyone is able to make full answer in defence.
I'll pass the floor on now, but we have other concerns — concerns dealing
with the change in spousal immunity, a change that may be good but deserves more
study and that has other implications. We have concerns with the amendments to
section 718.2(e) of the Criminal Code, dealing with Gladue
factors, and indeed we have some concerns with respect to the restitution
sections, which would preclude an analysis of an offender's ability to pay a
There are good parts of this bill, but there are simply concerns that are
fundamental changes that prevent us from supporting this bill wholeheartedly.
Catherine Latimer, Executive Director, John Howard Society of Canada:
Thank you very much. It's a great pleasure to be here to speak to you about this
The John Howard Society, as you know, is a charity committed to effective,
just and humane responses to the causes and consequences of crime. With more
than 60 affiliated offices across the country, many John Howard societies
provide services and support for those in conflict with the law, their families
We think that addressing the needs of victims is extremely important. We
think adequate compensation and availability of counselling and certainly
procedures which convey adequate and appropriate respect for the dignity of
victims are also laudable.
We do have concerns with the proposed bill of rights. We agree with Minister
MacKay's sentiments that this will be a transformative bill for its effect on
justice and the corrections system. And the likely implications for justice,
victims and offenders need to be carefully assessed before such a transformation
is undertaken. In our view, there are still a lot of unanswered questions around
what the impact of this bill will be. I wanted to take a quick moment to go
through some of these issues.
In the definition section, "victims" includes not only those who have
suffered emotional harm but also those who have suffered property damage and
economic loss. I'm wondering if that conveys victim rights to entities like
corporations or businesses who may have incurred losses as a result of criminal
activity. Given that the new restitution rights sort of open criminal courts to
civil remedies in terms of restitution, would this be an invitation to corporate
entities to short-circuit a civil process and look for restitution on the backs
of the criminal justice system, which is not I think entirely appropriate?
Community victims are given rights under this bill, but we're not entirely
sure how they're defined. What exactly is a community victim? Who are they?
Information rights I think are extremely important, but it seems that the
justice and corrections systems' ability to decline to share information is
reduced. You hear from a lot of victims' groups, including Sharon Rosenfeldt,
who is still here, whose family member was the innocent victim of a very serious
serial murderer. But there are many victims who are attacked by or victimized by
competing and rival gangs, or in association with marital breakdown, or in other
areas where there is ongoing animosity and problems. Are we sure that we want
all victims having access to lots of information about the offenders where there
might be a possibility of vigilantism or reprisals resulting from the spread of
Similarly, participation rights: What exactly are the implications of those
for impartial, objective justice and the corrections system? This is
particularly true for fluid categories.
Someone mentioned, for example, Bill C-53 — I think it was Megan — which
includes the ability to ensure there is no eligibility for parole if it's a
particularly brutal murder. I don't think there's any victim who has witnessed
the death of a loved one at the hands of a murderer who would be predisposed to
think that wasn't a brutal event. If the justice system is listening to the
words of the victims, it would be hard-pressed to differentiate and keep the
numbers to the six or so that Minister MacKay is saying would be affected by
this "life means life" provision.
I think there will be an expansion of penalties associated with the voice. I
appreciate that it's a voice and not a veto, but it certainly will have
implications for the justice system that are probably not anticipated at this
One of our big concerns relates to restitution rights. Given the
totality-of-the-sentence principle, doesn't the requirement to consider a
monetary order for victims as part of the sentence skew the principles and
practices of criminal justice? By that I mean that our criminal justice system
has evolved away from a system of monetary penalties paid by the criminal or the
criminal's family for each type of injury experienced by a victim. There are
still some countries that have sort of a blood money kind of system where money
is paid to the victim and the victim's family in connection with the criminal
Ours is more an element of sentencing, which has to be linked in with the
totality of the appropriate sentence that holds somebody accountable. If part of
that appropriate penalty can be paid more easily by someone who has a lot of
money, are you building a class skew into the sentencing provisions and the
sentencing capacity and fairness in the sentencing area?
We have concerns not only about the fairness of the restitution provisions in
coming up with proportionate and fair sentences but also about what they will do
to the administration of justice in terms of slowing the system down — inviting
insurance companies, perhaps, to require people who have suffered car theft
losses to first proceed against the offender before their insurance pays out,
and whether or not that will load up the criminal justice system in an
We are also concerned about the remedies. While extensive rights are not set
out for victims, the recourse for the system's failure with respect to those
rights is filing a complaint. Are the expectations of victims being raised
beyond what the justice and corrections systems are able or required to meet
under this bill? I think that's really unfair to victims, to set out a set of
rights that the justice system can't possibly meet.
Our conclusion is that many elements of this bill are indeed laudable, but
given the transformative character of the bill and the number of unanswered
questions, we would encourage that a lot more thought be given to the
implications of this bill for the criminal justice and corrections systems
before it is passed into law.
Senator Baker: Thank you to the witnesses for three excellent
I must admit, it's very interesting and very difficult to confine oneself to
just one or two questions. I want to congratulate Mr. Spratt as well for his
appearances before the Court of Appeal and the Supreme Court of Canada over the
years, and his organization, his association, and their intervenor status on a
lot of these very important cases.
I get the picture that the three of you are presenting, which you're
concerned about, and that is trial delay. I think Ms. Walker outlined it first,
and Mr. Spratt, as far as trial delay goes, but lengthening out the provisions
here for witnesses to make applications to the court.
The reason why that is so important is there is an increasing number, in
every province in this country today, of the application of Askov, the
application of section 11(b) of the Charter, trial within a reasonable
period of time. You get people who are alleged to have committed the worst of
crimes. The RCMP spends all their time, as Chief White would tell you,
researching crimes, to have them appear before a court, as Ms. Walker pointed
out from the very beginning, and have a trial take two or three years, and then
all charges are just thrown out. The accused is then free — acquitted of
everything — because the trial took too long. It's established in law in Canada
— and, Mr. Spratt, I wonder if you could verify this — that, from the point of
charge to the point of the first appearance to the point of the trial beginning,
there are time periods laid down by the Supreme Court of Canada, and if you
violate those in any serious manner — and it's the fault of applications, not
the fault of the accused — if you don't meet these deadlines, one could end up
being acquitted of everything. Is that not correct? There are established
guidelines, and this bill will lengthen now the period of time. Is that correct?
Mr. Spratt: That is right. It is not the fact that the charges could
be stayed at the end of the day, but the fact that witnesses' memories can
diminish over time and complainants have these matters hanging over their heads.
Or, if the accused is found not guilty, he might be living under restrictive
bail conditions during that period of time. Delay is not good for anyone, and
it's not sought out by any party, but it's a reality.
Senator Baker: That's what Canadians are concerned about. The more we
lengthen out these trials, the more people who are accused never do come to an
adjudication, the stay is entered, section 24(1) of the Charter, because it took
too long to get through the process.
On the matter of the right to have a restitution order, restitution orders
are not strange to Canadian law. The form that's being used is the form that was
used, Form 34.1, which says "fraud" under it. That's now changed to a general
provision. During a fraud trial, the amounts of money that were defrauded are
established by the court as an essential element of the offence. That's what the
court case is about. You're able to say this is the amount of money that should
form the restitution order. It's very simple; it's part of the trial.
How will the entry of a restitution order that has nothing to do with the
essential elements of the trial work now? Can you recall any instance in Canada
where you have had a law or portion of a law that said that somebody's ability
to pay need not be considered at all, because the Supreme Court of Canada and
every Court of Appeal in this country ruled that somebody's ability to pay is
one of the major considerations of restitution? Could you answer that question?
What will be the procedure now that you perceive under this bill for the
determination of the restitution order, Mr. Spratt? Ms. Latimer?
Mr. Spratt: As a criminal defence counsel, when the restitution amount
isn't part of the offence itself, I don't know how that will be proved in court.
Will the court permit me to cross-examine a complainant about the quote? Will it
be like an insurance company that will require three quotes to fix a property?
Will I be able to bring applications or cross- examine a complainant about lost
time at work or mental health issues that could have arisen that caused
financial difficulty? It will certainly delay the process. I suppose I will
disagree. I can think of one time when ability to pay isn't a factor, and that's
the victim fine surcharge.
Senator Baker: But that's not a restitution order.
Mr. Spratt: That's not a restitution order, but that's currently
before the courts. Constitutional matters have been identified there. It's
problematic, to say the least.
Ms. Latimer: I think ability to pay is included in the fine provisions
in the Criminal Code as a potential penalty. If you're going to be looking at it
as a penalty, it's good policy and has been the law that you need to look at the
capacity of the individual to pay it before it's ordered.
Ms. Walker: Of course, my friends on the panel next to me are working
with criminal activity, I guess in defence assistance, whereas I'm working with
victims. We know from women who are being abused by their partners that
oftentimes they hide money. It's very easy for them to do that with family law
orders. They work under the table, things like that. I'm very happy to say that
there should be a restitution order and it shouldn't be about the ability to
pay. What about the ability of that victim to get help? Doesn't she have a
right? Don't victims have a right to restitution so that they can move on in
their lives? I frankly don't care if the offender has a lack of ability to pay.
What I care about is that that woman, or that man or that child has resources
available to assist them in moving on in their lives.
Senator Boisvenu: I would like to thank you for your testimony. Ms.
Walker, I would also like to thank you for acknowledging that our government is
working very hard for victims of crime. That opinion is shared by many people.
Ms. Walker, it is true that the indictment and conviction rates are 2.5 per
cent in Canada, which represents the percentage of men or violent individuals
who will not spend one day in prison, and 97 per cent of them will never receive
a prison sentence.
There are two reasons for that. First, one out of ten victims reports their
attacker, and in 50 per cent of the cases, the others will drop their complaint
during the process because they feel they are not protected and the sentences
are often light.
This bill of rights is based on fundamental principles, such as information
and protection. As I was asking Commissioner Don Head yesterday, will our
correctional system protect women once the spouse or violent individual gets out
of prison? We know that victims often do not accuse their attackers because the
victims run the risk of being subject to even greater violence afterwards.
In that sense, will this bill of rights help to better protect victims and
encourage them to report their attackers?
Ms. Walker: We know that women continue to be victimized, even when
their abuser is in jail, by relentless phone calls and by messages being sent by
others. I stand firmly on the side of women and victims who are trying to move
forward in their lives. We need mechanisms in place to ensure the safety of
women, and I think this bill accomplishes that. It allows for support people. It
allows for anonymous testimony. There are restitution orders. It recognizes what
a victim is.
Mr. Spratt mentioned earlier about the anonymity factor and how that's not
relevant in domestic violence cases. I'm not sure how extensive he is work is in
working with women who have been violated by their partners or sexually abused.
We saw 3,300 women last year and responded to 5,000 phone calls. There are many
cases where a witness — maybe not the woman, but a witness — will not come
forward and testify to help that woman if she's going to be known. To me,
proposed section 17 is something that we have been advocating for a very long
time. The provisions in this bill go a great distance toward protecting women
and children in our communities.
Senator Boisvenu: Ms. Latimer, you raised many questions in your
presentation, and that is very wise. The situation is similar to that of the
Canadian Charter of Rights and Freedoms, adopted in 1982, when defence
attorneys, who make good use of it today, did not quite know how it would
encompass the rights of alleged criminals in the medium term. Today we see that
it is a charter that affords them a great deal of protection.
You started out by saying that the participation of victims could make the
justice system less objective. However, does the fact that the criminal actively
participates in the current justice system make it more objective?
You said that restitution is not part of the sentence. However, every day in
Quebec, in assault cases, I see judges handing down a jail term and ordering the
criminal to make a donation to an organization that helps victims. I see that
the principle of restitution is applied every day in criminal justice,
especially in assault cases.
I am trying to understand. Could you clarify how the bill of rights will
handicap the justice system such that restitution will result in a harsher
sentence, even though this is already being done?
Ms. Latimer: I think it will compound the burdening problem. Let's say
for example that they brought criminal charges against a rail company that was
allegedly criminally negligent for a rail disaster, which had a profound number
of victims and people affected economically by the damage caused by the rail
disaster. If the police and the prosecutors were trying to notify and be in
contact with all of those victims, you're going to have a big hemorrhaging of
time such that you will be running up against your Askov deadlines.
Similarly, the really complicated prosecutions that involve underworld gangs, a
lot of discoveries and evidence take a long time. They're the more serious
offences, and they are the ones where you want to see convictions apply.
So if there are further delays in the system in order to give victims
information and a variety of other things, it may well lead to some of the most
serious offenders not being prosecuted for the offences they may have committed.
That's a problem.
The other problem is that you want the criminal justice system to be
objective, fair and impartial. Frankly, that's why the criminal justice system
evolved away from a dispute between a perpetrator and the victim and introduced
the offence being against the Queen or against the state to make it objective.
Senator Fraser: Let me thank you all for being here. You all made
thought-provoking points, but as a Quebecer I was struck by that reference to a
train derailment, for obvious reasons. I found myself thinking this is going to
be a very difficult circle to square because of the points you make, Ms.
Latimer, about delay. You have all expressed concerns about delay, and every
Canadian who thinks for five seconds about the legal system is upset about the
delays that just seem to grow and grow. Yet, in a case like Lac-MØgantic, those
people are all terrible victims, so I'm wondering if there is a way to square
For example, under this bill, would it be possible to have a representative
of the victims be the one who is responsible — I don't mean to say that in a
disparaging way — for being the interface between the court and them? You can do
it today with electronics, and that person would be responsible for funneling
out all the information, for gathering the input that the victims wanted to make
and collating it? Is that possible, and would it work?
Ms. Latimer: I think it's a very good idea. There are big events where
there are lot victims, and often there are security issues where information,
for security reasons, is not going to be forthcoming, like the Boston Marathon
bombing. How many people were victimized and hurt by that? If you had an
obligation to consult with each victim and get their views, you would be
distracting the police and law enforcement. But if you can come up with another
mechanism so the legitimate interests of the victims are being met, which
wouldn't put the burden on the front-line police officers or others, there may
be some way of doing that. These are all unanswered questions under this bill.
Senator Fraser: You don't find anything in this bill?
Ms. Latimer: There is a possibility of designating. A victim can
Senator Fraser: If they all designate the same person, that might
Ms. Latimer: Maybe, but the designation provision also poses some
problems for me. What if they designate someone in a hostile position? You don't
know who they will designate.
Ms. Walker: Senator Fraser, I feel bad about all victims. That's my
work, whether it's in an airplane crash or a train derailment or any other
crime. But I think we have to recognize that the most dangerous place for women
is in their own home where they are supposed to be free and at peace. More than
50 per cent of women and girls over the age of 16 will experience sexual or
physical violence in their life. It is a huge issue that needs to be addressed,
and this bill addresses it.
On the delay in the courts, my comment was not that we shouldn't have any of
these provisions because of the delay in the court. My comment is that we need
to be careful of what we add to this existing bill because it will further delay
the courts. In fact, we believe this bill decrease those delays, instead of
women who have been sexually assaulted saying to the Crown, after 16 months or
more, "I don't want to do it anymore," or after three months, "I don't want to
pursue it anymore." It is wasted time. She says that because she doesn't feel
supported. This bill will provide her with the support she needs to move forward
with the justice system.
Senator Fraser: Please understand me. I wasn't trying to attack the
concept of victims' rights and particularly not the rights of abused women. My
question to Ms. Latimer had to do more with these massive cases where we've seen
serious crimes not go to trial at the end because of these tremendous delays. I
was trying to figure out how to square that circle, but please don't think I am
trying in any way to diminish the rights of women who need rights.
Senator Plett: Mr. Spratt, you have been here many times, and let me
start off on a positive note and thank you for giving us your testimony. I don't
think you once used the phrase that you think it is unconstitutional, so I
appreciate that. We are at least in agreement on one issue.
Mr. Spratt: I'm trying to think of synonyms at this point.
Senator Plett: Mr. Spratt, I have two comments I would like you to
address, and then a question for Ms. Walker.
I find it ironic when a defence lawyer talks about his problems with the
delay in courts when I don't think there is anybody in this world that tries to
delay trials more, if it benefits his client, than a defence lawyer. For you to
use that as part of your argument I find quite ironic.
The other comment I want to make is that you took a little swipe at the
government in part of your address, and I'm wondering whether you know that this
bill passed unanimously in the House of Commons, so indeed the Liberals and the
NDP also voted in favour of that. Those are my comments to Mr. Spratt.
Mr. Spratt: It might be useful to start by clarifying a legal issue
that came up before. The starting premise is that Charter protections aren't
just for those who commit crimes. Charter protections protect us all. When we're
looking specifically at delay under the Charter, it is an issue that affects us
all. Come and spend a day with me. I'll take you around our courts.
If you were with me last Friday, you would have seen that I was in court
trying to set a trial date on a second appearance, and I was told I couldn't set
a trial date at that time. You would have seen that I was in court yesterday,
trying to set a trial date for someone in custody, and I was available next
week, next month, the month after. Do you know when that trial date was set?
January. That's not because I asked for it to be in January. That's because, to
a large extent, if you want to talk about politics, we see bill after bill after
bill that tinkers with the justice system, and we don't see any corresponding
funding. It's easy to pass these laws, and some of them, and some of the
provisions here, are very useful and very justified. No one can disagree that
information should be given to victims. No one can disagree that victims should
have support. To a large extent, they do. Strengthening of that is not a
problem, but, when there's no additional funding, I find it ironic that blame
for the delay will be put at the defence counsel's feet when, time after time
after time, we just want to set a trial and can't. So give me some money, and I
will set some trials because we'll have time. If you want to come around and
spend a day with me, I'll take you to the jail and show you all of my clients in
custody who just want to move forward.
Senator Plett: Fair enough. We have all been in the courts when the
judge sits there with his Day-timer, and the lawyers sit there with their
Day-timers. The lawyers, as often as the judge, can't find an acceptable date
because they're doing whatever they're doing. They're busy with a different
trial, or they're off in Whistler skiing. Nevertheless, I think that goes around
Ms. Walker, first of all, you made a statement that you work with and for
victims. Thank you for the tremendously good work that you do.
Ms. Walker: Thank you.
Senator Plett: You answered my question on the restitution order, and
I think we've beaten that to death. Ms. Latimer talked about that; you all have.
So I will ask this question. I would like your comments on the amendment to the
Canada Evidence Act removing the common-law rule that prevents spouses of
accused people from testifying against the accused on behalf of the Crown. Do
you believe this is positive?
Ms. Walker: Absolutely. There is no way that offenders should be
allowed to move forward when their spouse has important information that could
lead to a conviction. Absolutely, we support that.
If I could comment on one thing about the court delays, court delays have
been happening across this country for years, and I don't think today is the
day, when we're talking about victims' rights, that we bring forward the
significant issues of court delays that are pre-existing and that we believe
will be addressed through many of the measures in this bill.
Senator Plett: Absolutely. Thank you very much.
Senator Batters: Thank you very much, and a little about that court
delay, trial delay, issue. It's a major concern in our criminal justice system,
and I'm keenly aware of that because of the time that I spent working in the
Saskatchewan justice minister's office, where a significant period of our time
is always spent ensuring that our trial delays are manageable and reasonable so
that the provincial governments, who are responsible for the administration of
justice in their particular provinces, are not going to have cases against
serious criminals thrown out of court because of trial delays.
But what I'd point out is that it's precisely because of the concern about
that significant issue that certain aspects of this bill deliberately don't go
as far as some victims' groups would ideally like to see, at this point. It's to
avoid those delays. Ms. Walker, you pointed out very well that the advocacy
efforts that there are right now, pushing to allow victims status as
intervenors, could bring a further backlog and delay to the court proceedings.
Thank you very much for the very keen insight into that.
Ms. Walker, you testified before us with Bill C-36, the prostitution
legislation. I want to congratulate you not only for your work on behalf of
abused women and children but also for the amazing work that you've done on
other very topical issues. Every so often, I see you on national television,
speaking about different issues of importance to women. Thank you very much for
your work on that.
Ms. Walker: Thank you.
Senator Batters: When you testified on this legislation before the
House of Commons Justice Committee, you stated that for victims to access the
criminal justice system is very difficult. I'm wondering whether you can explain
what you view as the barriers that victims face in accessing the justice system
and how this legislation addresses some of those issues.
Ms. Walker: I can take you through a very brief process. When women
access our office and come in, we explain what their options are. Sometimes
women will say, "I want to go to the police." What does that mean? We'll explain
what that means. It means being interrogated. It means being videotaped. When
she finally goes to court, it means she'll be on the stand and usually attacked
as if she's the offender by the defence counsel. It's a very long process, and
conviction rates are very low. Often, she says, "I can't go through that unless
I have somebody that will go through that with me. Will you or a support person
come with me?" We don't have that ability now in the courtroom. We don't have
the ability to sit with the woman and say, during the process, "We need a break.
She's being traumatized or re- traumatized, and we need to do some debriefing."
All of those stages along the way help that woman to be able to be succinct in
her testimony, recall the incident in her testimony and feel that, at the end of
the day, she did the right thing. This is why we are so supportive of this. It
provides the tools victims need to be able to face the criminal justice system.
Senator Batters: Absolutely. You testified before us on Bill C-36, the
prostitution legislation largely helping exploited women and children. I think
you would probably agree that this particular bill for victims' rights in Canada
is a paradigm shift, just as that was, a complete change in attitude for how
we're treating these vulnerable people.
Ms. Walker: Absolutely, and we said during Bill C-36 that we felt that
the outcome of that will be to shift the culture for future generations of boys
and girls. I think that, like with this, we are shifting a culture in how we
recognize, respect and dignify the voices of the victims, whether they are still
alive or not.
Senator McIntyre: Thank you all for your presentations. Mr. Spratt and
Ms. Latimer, in your presentations, I noted the concerns you had regarding the
right to restitution under this bill. It's clear that courts, under this bill,
must consider a restitution order in all offences. This does not mean that such
an order must be granted but, rather, that the court must turn its mind to the
Now, having said this, if a restitution order, as I understand it, is made
and the offender does not pay, the victim may have the order entered as a civil
court judgment, enforceable against that offender, which would then allow the
victim to seek repayment through measures such as the seizure of the offender's
funds, as set out under section 29 of this bill. Now, isn't this already
possible under section 741 of the Code? I don't see where the problem is with
respect to the right to restitution.
Mr. Spratt: My comments were directed specifically at clause 30, about
the consideration of financial means and ability to pay. In my experience, we
already see a little bit of this in the current process, how the inequity
between the poor and the rich can drastically effect what happens in court. I'll
give you one small example, a fraud-over charge, a very serious charge, a charge
for which, if you plead guilty to it, you're precluded from getting a
conditional discharge. It will show up on your record. One of the common things
that the Crowns do, in the use of their discretion, is say, "If your client can
pay back some of that money upfront, we can drop it down to a fraud-under
charge, and then a lesser punishment is available." Of course, if you're poor —
and there's no option if you're poor to pay that money back — it can lead to
different justice for different people. The restitution order, when we don't
look at ability to pay, which courts of appeal have told us is an important
consideration, also risks treating the rich and the poor quite differently when
it comes to the ultimate sentence.
Senator McIntyre: Another point I wish to raise with the two of you is
a point of clarification, really.
Sections 28 and 29 of the bill make it clear that a violation of the rights
outlined in the bill does not create a cause of action or a right to damages. It
doesn't create a right to appeal the decision in criminal justice system
proceedings on the basis that a right under this act has been infringed or
The bill uses the words "rights" as opposed to "principles." The rights
outlined in Bill C-32 are primarily procedural, as you know, including rights to
information, protection, participation and restitution. The bill does not grant
victims a status as a party to proceedings. In a criminal trial, the prosecutor
is a party to proceedings, the accused is a party to proceedings, but in this
case here, the victim would not be a party to proceedings.
My question is this: Do you want this bill framed in such a way that the
victim would be a party to proceedings?
Mr. Spratt: Heavens, no.
Senator McIntyre: You've answered my question. Ms. Latimer, same
Ms. Latimer: No, but I think that if the implication, the restitution
order is an additional loss of property for the offender —
Senator McIntyre: On that part only?
Ms. Latimer: Yes, but they should have some rights to question the
actual loss of the victim, which the victim is alleging, against which they are
going to be required to pay. To me, it's an unfortunate conflation of civil and
criminal law principles, and you're really disadvantaging someone with a civil
law remedy by embedding it into the criminal law process.
Senator McIntyre: But then again, all they would have to do is turn to
the complaint mechanism, either under the provincial authority or the federal
Ms. Latimer: You mean if they don't get a restitution order, then the
victim can complain?
Senator McIntyre: Yes.
Ms. Latimer: I would argue that the remedies set out in the bill are
not very strong and that this is really an unfortunate thing for victims. You're
leading them to believe that they have restitution rights, but they can't
actually do much about requiring those to be enforced.
Senator McIntyre: I agree that they should not be granted status as
party to proceedings, so you've both answered my question. Thank you.
Senator McInnis: Thank you. I'm glad you're here, Mr. Spratt, because
I think you've clarified some things. I don't know how often you caucus or
communicate with your colleagues, but your association, when they appeared
before the Justice Committee, said that what we need is more money, funding for
the courts and litigants to move litigation forward, and not more laws.
I took that to mean, when I read it, that this individual didn't think this
bill was very important. You've clarified that somewhat. We always appreciate
your critique; it's always intelligent, and someday I hope that you will appear
— perhaps you don't appear here when you agree holus-bolus.
Mr. Spratt: There was one time.
Senator McInnis: I haven't seen it yet.
Crime in Canada is going down. You're absolutely correct about the length of
trials. It's horrendous — it really is — and people are suffering. But my
experience in the legal system is that throwing money at it, throwing dollars at
it doesn't work. What has the Canadian Bar Association done to help correct the
Mr. Spratt: What we've done to help correct the system is to advocate
for procedures and for appropriate funding.
I agree that throwing money at a problem often doesn't make it better, but
what we need is more judges, a provincial responsibility to a large extent. What
we need is more courtrooms. What we need is a more robust legal aid system to
help the indigent when they could go to jail and their liberty could be affected
but they can't afford a lawyer. Those are primarily the delays that we look at.
Senator McInnis: But crime is going down, by 4 per cent last year.
Mr. Spratt: The complexity of proceedings — and that's one of the
things we have talked about in this bill — is increasing when you look at
interceptions of electronic communications. If you turn to your left, I'm sure
Senator White will tell you the massive amounts of disclosure that can come out
of a criminal investigation these days because of the sophistication of the
There may have been fewer delays pre-Charter in the days when information
wasn't disclosed to defence counsel and in the days when there weren't so many
of these proceeding. There were also lots of wrongful convictions because of
non-disclosure then. Sometimes to do things right takes a long time, and
sometimes that takes more money.
Senator McInnis: Some of these trials have taken three years. It's
Mr. Spratt: Especially if you're dealing with a large project, with
multiple co-accused and a lot of police resources that went into the
investigation and the apprehension of the individuals. Yes, sometimes things
take a long time.
Senator White: I have just a short question, if I may, because you
threw my name out there.
A few years ago I was involved in a research project. We looked at the
province of Ontario, and on average, 200,000 cases a year came to a successful
conclusion, which means actually finished in court. Those 200,000 cases averaged
nine appearances per case, no proportionality. For shoplifting or attempted
murder, there were nine appearances. More than 50 per cent of the requests for
adjournments were from defence.
So while I appreciate your comments around finding a speedier way, I don't
necessarily appreciate the suggestion that it's the court or the Crown that owns
this. I think it's owned as well by the defence lawyers.
Mr. Spratt: Defence counsel request adjournments for disclosure of
information, for their client to obtain legal aid and to be retained. Those are
all defence requests but not necessarily delays that would fully fall on defence
The last time I had to adjourn a matter was because a pre-sentence report
wasn't ready because we don't have enough probation officers to write
pre-sentence reports, which can take eight weeks now. I had to delay another
matter because it took a long time in Ottawa to prepare a Gladue report
about the circumstances of an Aboriginal offender.
So if resources could be directed to those areas, it would decrease court
time as well. I should also say there is no objection to resources being used to
provide support for complainants in matters. We see that in court now, where
there are victim support workers who come with the complainant. There are
actually provisions in the Criminal Code when a third-party record application
is brought to the complainant —
The Chair: Mr. Spratt, this is something perhaps the committee at some
point would be interested in if we study court delay situations. I know the
terms of defence, the two-for-one remand credits, was an issue with respect to
defence counsel as well.
We thank you all for very interesting contributions to our deliberations.