Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 16 - Evidence for November 25, 2010
OTTAWA, Thursday, November 25, 2010
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-464, An Act to amend the Criminal Code (justification for detention in custody), met this day at 10:34 a.m. to give consideration to the bill.
Senator John Wallace (Deputy Chair) in the chair.
[English]
The Deputy Chair: Colleagues, if everyone would be seated, we will begin.
Good morning, honourable senators, and our guests. I am John Wallace, a senator from New Brunswick and the deputy chair of the Standing Senate Committee on Legal and Constitutional Affairs.
First, let me provide you with a brief overview of the subject of today's meeting. Bill C-464, an act to amend the Criminal Code, referred to as justification for detention in custody, is a one-clause bill that, if enacted, would amend one of the provisions governing the granting or denial of judicial interim release, more commonly referred to as bail, and found at section 515 of the Criminal Code.
More specifically, clause 1 of the bill would amend section 515(10)(b) by adding the words, "any person under 18 years'' to this section. Bill C-464 would serve to highlight, for justices, the need to specifically consider whether the detention of a person who has been charged with an offence is necessary for the protection and safety of minors when considering whether or not detention is necessary for the protection and safety of the public generally.
This is the committee's third meeting on Bill C-464, the first meeting having been held on November 18, and the most recent one having taken place yesterday, on November 24.
To discuss this bill in greater detail, I am very pleased to introduce to the committee Ms. Heidi Illingworth, Executive Director of Canadian Resource Centre for Victims of Crime, CRCVC. Ms. Illingworth has appeared before us previously, and her assistance is always appreciated.
Ms. Illingworth, the floor is yours.
Heidi Illingworth, Executive Director, Canadian Resource Centre for Victims of Crime: Good morning, everyone. I want to thank the Senate committee for inviting the Canadian Resource Centre for Victims of Crime to offer comments on Bill C-464. It is a pleasure to be here this morning.
I did have an opportunity to watch the witnesses who appeared yesterday afternoon, and I appreciate all of their comments. David and Kate Bagby's story is truly tragic, and it never gets easier to hear about the loss of their son and their grandson. Imagine that you were them and had to live with the horror of these crimes each and every day. We are here to voice our ongoing support for the Bagby family and others like them, to make sure that another family does not have to endure the same suffering.
I must also reiterate the point of the Federal Ombudsman for Victims of Crime yesterday. The Bagbys' case is not an isolated incident.
Allan Schoenborn of Kamloops, British Columbia, was obsessed with the belief that his three young children were at risk of abuse, leading him to murder all three of them in their beds on April 6, 2008. Days before the children were killed, Mr. Schoenborn was arrested over a disturbing incident at his daughter's elementary school. He was charged with two counts of uttering threats to cause bodily harm after he threatened a young girl who had upset his daughter. Police asked that Mr. Schoenborn be held in custody over the weekend until April 7, when he could be brought before a judge in person. Instead, in a bail hearing by telephone, a Justice of the Peace agreed to free Mr. Schoenborn.
Peter Lee of Victoria, British Columbia, attempted to murder his wife in 2007. He was charged but granted judicial interim release, despite a recommendation by the police that he not be released by the courts. Conditions were imposed that required him not to have contact with his wife, yet in September of 2007 he murdered his six-year-old son, as well as his wife and her parents.
In Cumberland, Ontario, in April of 2006, Frank Mailly murdered his two sons, ages six and nine, his daughter, aged twelve, and their mother. He then burned down their home, with their bodies in it, killing himself in the process. He was not to have contact with Francine Mailly, but he had visitation rights to the children, and committed these murders at the conclusion of one of their visits. Mailly had a long history of domestic violence and was on bail at the time he murdered his family.
In 2002, Lawrence Mends was released on bail in St. Catharines, Ontario, following an attempt to take the life of the mother of his child. When he returned to her home to attack her again, he wounded her and murdered their two-year- old son Robert, stabbing him in excess of 20 times with a knife.
These are just a few examples of where the risk to children was not properly assessed.
Bill C-464 seeks to amend the provisions that govern when detention should be ordered and correct what is, in our opinion, a gross oversight. Bill C-464 modifies section 515(10)(b) to provide that the detention of an accused in custody may be justified where it is necessary for the protection or safety of the accused's minor children. It was amended by the House of Commons Standing Committee on Justice and Human Rights to refer to all children under the age of 18, not just the accused's children. We support that amendment and hope this modification might save the lives of children. We do know that the children most at risk are the minor children of the accused.
The legislative change proposed in this bill will compel the judiciary to consider minor children when making a decision about bail. Had such consideration been given to Zachary Turner; Christian Lee; Jessica, Brandon and Kevin Mailly; Max, Kaitlynne and Cordon Schoenborn; Robert Mends and many others, they would likely be alive today. Thank you.
The Deputy Chair: Thank you, Ms. Illingworth. We will now turn to questions from committee members. Not to put him on a spot, but because I know he has a lot of time and effort and heart and soul invested in this, I will turn to Senator Banks for a question or comment.
Senator Banks: I only have a comment. I do not think we can compel the judiciary to do anything. I may be wrong. I would ask a lawyer to answer me, but I do not think that we can, by this or any other enactment, compel the judiciary to do anything, although I appreciate it sometimes would be nice if we could. However, it is certainly our hope that it will call the attention of judges when they are considering the granting of judicial interim release to take into account and to ensure that they are able to take into account with full access to the information what dangers might befall any young persons who are involved with the accused.
I thank you very much for your support for this legislation.
Senator Runciman: Thank you for being here. Can you tell us a little about your organization and your reach, if you will, with respect to the country?
Ms. Illingworth: We are a national, non-profit agency. We are located here in Ottawa but do provide assistance to victims and survivors of serious violent crimes right across Canada in all the provinces and territories. For the most part, we provide assistance to families in cases where there has been a homicide, but also other serious violent crimes.
We provide assistance to about 200 long-term clients when it comes to the corrections and parole system in Canada. We are now receiving hundreds of phone calls every day from across the country, from people looking for services, support and information on questions they have about the criminal justice system, and how they can access financial compensation for what has happened to them.
We provide a monthly newsletter that reaches about 1,000 service providers and victims and survivors across the country on a monthly basis. We have a website with many resources for survivors. We do a lot of advocacy work on individual cases when people are having some sort of problem with the justice system. We write letters to police, to Crowns, to provincial and territorial ministers as well as federal ministers about issues that are impacting victims negatively.
Senator Runciman: That is very impressive. What has your experience been with victims being given adequate consideration at bail hearings? Do you have any experience you can share with us on that?
Ms. Illingworth: Yes, it is difficult. We find that the experience of victims has not been good, especially in cases of domestic violence where there is serious personal fear on behalf of survivors. Unfortunately, many victims feel and report to us that their considerations are not being heard by police and by the Crown in some cases.
Senator Runciman: It is interesting because we had a witness here yesterday who was a former Crown prosecutor and was very laudatory about a checklist in Ontario with respect to domestic violence. However my own observation with respect to that is that people still make the occasional mistake and people slip through the cracks; he felt that the checklist in Ontario was doing a superb job to address the issues with which this legislation deals. Could you talk a little about the Ontario experience? I have had my own personal concerns about bail hearings with respect to gun crime, but this is an issue dealing with the safety of children and a murder charge.
Could you talk about your observations in that respect? We just had the death of two young children in Ontario, and I am not sure about the circumstances surrounding that, whether there were again problems and flaws in the system that allowed that to occur.
Ms. Illingworth: Certainly that recent case that you are talking about is very upsetting. Again, as I understand it, that was not a case similar to these ones where there had been domestic violence issues in the past. Unfortunately, there were family law issues. The parents were separating, and as a result we saw, which was similar to this case, the two young children were murdered where in this case the mother felt that they should not be with the father.
We talk to victims all across Ontario who have real concerns about their safety, the safety of their loved ones. The system certainly does more now than it did before to try to take these considerations into account. However, unfortunately, as you discussed yesterday, there are still these cases where they just do not go deep enough into the history to see that there are children in real potential danger, and that is a concern. For us, public safety is the most important consideration, and certainly the most vulnerable, some of whom are children, should be the first consideration for Crowns and the judiciary.
Senator Runciman: Going beyond the scope of this bill, is there anything you would like to suggest to us as parliamentarians in terms of further initiatives that could give greater protection, especially to children, but to spouses as well? We have seen restraining orders not do the job. Greater consideration by the Crown and the judiciary is needed, but also I am interested if you have any observation about electronic monitoring as well when there is a restraining order given. Alberta I think is moving in the direction of greater use of electronic monitoring in these instances as well. Do you have any views on that or any initiatives that you think that Parliament should be considering?
Ms. Illingworth: We feel very strongly that victims should have standing in criminal court to make their interests heard, just as the accused's interests are heard, and the Crown acts on behalf of state. If the Bagbys could have voiced their own concerns directly throughout the process at a few stages, something might have changed in this case.
I know you talked yesterday about the problems with family law and the criminal courts not sharing information appropriately. That is a concern for us. We know how volatile these cases can be when there is an abusive situation occurring in a home. Certainly when it evolves to the point that a spouse is attacked or is murdered, as in the case of Shirley Turner, there needs to be some sort of advocate for the child who can speak in court.
When provinces are looking at electronic monitoring to try to keep better track of accused who are supposed to stay away from people, we would absolutely support that.
Senator Runciman: Thank you very much.
[Translation]
Senator Carignan: This is a matter of great concern to me. My goal is to make sure that the bill affords maximum protection to children and that it accomplishes its objective. Various situations have been mentioned. In Frank Mailly's case, for example, this individual was released on the condition that he has no contact with his spouse, but there was no condition with regards to the children. If I understand correctly, it seems that Mr. Mailly murdered his children while exercising his custody rights.
I would like to know if, during the course of your experience, you have often seen cases where spouses are not allowed to communicate with each other, but where the victim has been trying very hard to limit her spouse's visitation rights and is caught up in the intricacies of family law whereas it is quite clear that the criminal judge considered the spouse to constitute a threat to this person and so, one can presume, a threat to the children as well. Does this frequently occur? If so, can you tell us what spouses and assault victims mostly complain about?
[English]
Ms. Illingworth: It is difficult for us to know that this happens frequently. In this case, he was having a visitation, and it was at the end of the visitation when he murdered the children and his wife and then killed himself, as you say. I would suggest that this is an area that needs focused research in this country. As we know, Statistics Canada does track the homicides of children, but we do not know under what circumstances, if the offenders were on judicial interim release at the time, but we do know that most are murdered by a parent. It is definitely a huge concern to us, but I cannot say that we have been involved directly with that many cases on the front lines where this is happening immediately. Our centre most often is in contact with people at the later stages of the criminal justice system.
[Translation]
Senator Boisvenu: The question I would ask would not, I hope, be open-ended, I realize that you are not a lawyer and neither am I —
Senator Carignan: This is not a flaw.
Senator Boisvenu: The murder of a child, I think, this is what the public, as well as communities find most shocking. Each time this happens, people question the justice system: how can an adult be allowed to have custody of a child or to have certain responsibilities towards the child when this person will eventually go so far as to murder that child?
I am always astonished to hear lawyers declare that the Criminal Code, as it stands, protects children well, because the protection of society is set out in the Criminal Code. I have always believed that a child, contrary to an adult, is unable to submit his expectations and his needs to the justice system. A victim of abuse, whose husband is accused of perpetrating this abuse, can always, in front of a judge, make her need for protection known and understood. A child cannot.
My question would be this: In your opinion, in view of your knowledge and experience, does the Criminal Code, as it stands, really protect children, considering that children are unable to make their expectations and needs understood by the justice system?
[English]
Ms. Illingworth: Our centre has great concern that the Criminal Code does not do a good enough job of protecting children, and I do not think that it can. With all of the different people working within the criminal justice system, there needs to be better information sharing among police, Crowns, family law and child protective services in order to do a better job of that.
Even one incident where a child is murdered is one too many. Certainly all these cases that we have listed are terrible examples of how this can and does happen in this country, and it is not infrequent. It happens too often, even if that is once or twice a year across the country. We need to do a better job of communicating between all the people who are providing services — victims' services, the police agencies. In these cases, police agencies said that the people should not be released on bail; it happened anyway, and they went on to commit horrific offences. There is a problem there definitely.
[Translation]
Senator Boisvenu: In your opinion, does the present bill go far enough or should it include other elements that would better protect children and, ultimately, their mother?
[English]
Ms. Illingworth: I think we can always go further. As you say, I am not a lawyer; I am not a legal expert. However, we do not do enough to protect people who are suffering from violence in this country, and unfortunately many times, it is seen as an instance where the woman needs to leave, she needs to get away from that situation. In some cases, that is not possible.
Today is the International Day for the Elimination of Violence against Women, and it is something that we need to talk about more and need to educate more right across this country to young children in schools, in the school system, to talk about what to do if they witness violence in the home and to teach young children respect for the opposite gender.
Senator Marshall: Thank you for appearing here this morning. The inquiry carried out into Zachary Turner's death was quite critical of Child, Youth and Family Services in Newfoundland and Labrador. There is also the Office of the Child and Youth Advocate in that province, and I think the structure is similar across Canada.
Would you have had any experience with child and family services in other provinces so as to provide any commentary on the need to improve services, that too many children are slipping through the cracks? Do you have any comments on that?
Ms. Illingworth: We have tried in the past to advocate on behalf of family members with various children's aid societies, and it has been impossible for us to do so. We get no response from these agencies. It is a very closed-off service.
They are involved with law enforcement, but I think all communities can do a better job of coordinating services around a child, someone vulnerable, in cases such as these when an incident first comes to the attention of the police. We know that it takes a long time for violence to come to the attention of the authorities. When it does, we need to do a better job of encircling those who are vulnerable and ensuring that they are protected, all the players, all of the agencies: law enforcement, child protective services, victim services and the Crown. There needs to be a better coordination of services.
Senator Marshall: I know for some provinces the child and youth advocate is independent of children's aid societies or the child and family services. Is that an option? Have you ever worked with those offices, and are they more responsive to the concerns of your organization?
Ms. Illingworth: We have not had any real experience dealing with the child and youth advocate, no, so I could not really speak to that I do not think.
Senator Marshall: For provinces where you do encounter difficulty in communicating or working with the departments or children's aid societies, that might be an option you could explore. We often did that in Newfoundland and Labrador. If we did not get a solution with the actual department or the service, we would approach the Office of the Child and Youth Advocate. That was another avenue.
Ms. Illingworth: We have in the past helped adults who were survivors of abuse in foster care as youth; and even helping them access their own file from Children's Aid Society is very difficult. However, thank you; I appreciate that suggestion.
Senator Baker: I want to congratulate the witness for coming forward and putting things into perspective as far as her organization is concerned and to note that already in the existing section of the Criminal Code, it says "detention is necessary for the protection or safety of the public, including any victim of or witness to the offence.''
Previous witnesses before this committee have pointed this out, some saying that it is already covered there. However, that is not really true because the general public is one thing, and then, one witness says, the victim is already protected there; but it is the victim of the offence for which the person has been charged who is protected. It is the witness to the offence who is being protected, not a potential victim. Therefore, your position is important, and your consideration of it, to address Senator Carignan's main point that he has been making all through these meetings, namely, when someone has visitation rights or custody rights under the family law act in each province the standard used is not the standard that is required of a bail judge. As Senator Carignan has pointed out, most of the information is redacted, vetted or black lined, as some people call it, when it does not pertain to the elements of custody and visitation that are defined in the provincial acts. This will close that loophole you believe, and as you say, the Criminal Code will now be amended so that a bail judge will have to consider a new element: children.
I congratulate you for coming forward as an organization that is really the resource centre for victims of crime. In this particular case, I think you are totally agreeing with the bill and Senator Banks in saying that this will protect against a potential offence and a potential victim, which is not presently the case because of the very reasons submitted by Senator Carignan, who is a litigator, so I congratulate you for coming forward.
That is my interpretation of what you said. Is that correct?
Ms. Illingworth: Yes, absolutely. I can tell you, and I am sure Senator Boisvenu would reiterate this, that people who are harmed by crime — the Bagbys said it repeatedly yesterday — do not want anyone else to suffer the way they have. The Bagbys' son was murdered, and all they were trying to do, their sole interest, was to protect their grandson, and they could not. He absolutely was a potential victim, and it is so terrible, unfortunate and horrible that the system did not recognize this.
Senator Baker: Thank you.
[Translation]
Senator Rivest: Let us take the case of a person that has been incarcerated because he is considered to pose a serious risk, particularly to the well-being of children. How does one determine that this person is no longer dangerous? In your experience, what criteria or conditions can bring a judge to decide that this person no longer constitutes a threat to children?
Whatever provisions concerning these matters the Criminal Code contains, they are not deciding factors, in an absolute sense. Provincial social services, organizations such as yours and the various measures that you apply are probably much more decisive. Do you believe that social services adequately protect children in Canada and are able to do so in an equitable fashion with regards to native communities as well as other communities?
[English]
Ms. Illingworth: If I understood correctly, the first part of your question was what are the situations when someone can be deemed to be no longer a danger to the children directly, and then whether our social service organizations in Canada are able to adequately protect children.
I do not know the answer to the first part of the question. I do not know if that is something that is the same in each and every case. Certainly we know that in cases where there is violence within the family that the children are in danger. Often it is the women who are attempting to protect their children and are killed in the process of doing so.
I do not know if the justice system is equipped to look beyond the moment that they are looking at right there and then. An incident has occurred, and they are looking at whether this person should be released until a next appearance. It is difficult, as some witnesses said yesterday, to predict the behaviour of someone for the potential to be violent, so I think it is different in every case. It has to be judged individually in every case that comes before the court. Certainly we support this bill because going forward it would highlight in every situation, hopefully, to any judge making a decision that he or she needs to specifically consider the potential harm to the children in each case.
As for social services organizations in Canada, many are doing excellent work. I think it is always a problem in the human service field for organizations such as ours to exist. Funding is an issue right across the board. Certainly Children's Aid Societies are funded provincially, and there are some non-profit organizations as well, so they can receive donations from the public.
Canadian society needs to do better at all levels — municipal, provincial and federal, and among the public as well — at funding these organizations that are doing good work to protect children and to speak for children.
[Translation]
Senator Chaput: Thank you for being with us this morning. You will no doubt agree with me when I say that one cannot expect the Criminal Code to address each and every situation. The Criminal Code, as it stands today, does not fully protect all of our children. Therefore, we have a problem.
One problem, according to me, is the lack of communication between the various systems. We have penal law, family law and child protection services. Each of these systems has information relative to a specific case. A computerized system would allow for the consolidation of all of this information that would then be made available to the judiciary. In your opinion, could such a tool help to somewhat alleviate the difficulties we are facing with regards to information sharing? Thus, the judiciary would have access to the information required to ascertain if certain individuals can have custody of a child, before these individuals harm or even murder a child. Could a computerized system be of help?
[English]
Ms. Illingworth: Yes, absolutely. We would support that completely. I think I stated previously that the sharing of information and coordination of services, coordination of information among all of the key players in family law, law enforcement, child protection and the Crown's office is absolutely necessary.
Senator Chaput: To your knowledge, is this being done at the present time? Is there some sharing of information already happening?
Ms. Illingworth: There is some sharing of information happening. All of the people working within these systems are probably just as devastated when cases such as these happen and when something falls through the cracks, but it is important that we learn from these experiences. It is so critical that victims such as the Bagbys come forward and share their experience. They have done so in such a poignant way so as to hopefully bring change to the system. There can never be too much information sharing.
As I said before, encircling of the child is occurring. We do have some child advocacy centres in Canada where that is happening. These centres bring together all of the people working around cases of child sexual abuse. They see amazing results in terms of getting convictions and supporting those children through very difficult processes. I know the government has announced funding for more of those across Canada, and that is an absolutely excellent initiative.
[Translation]
Senator Boisvenu: My question has to do with Senator Chaput's. Madam Illingworth, in some provinces, the power to hear criminal cases involving spousal abuse, as well as sexual and indecent assault has been delegated to municipal courts. This is the case in Quebec, where the Municipal Court of Montreal has been delegated the power to hear cases involving domestic violence. However, the provincial and municipal court systems being closed systems, the information contained in their respective minute's books is not shared.
Last year, in Montreal, there was a case involving a man given to abusive behavior that went on to be heard by the Provincial Court, after his violent behavior escalated. This man had a history of spousal abuse and had appeared before the Municipal Court. That said the provincial court judge did not have access to the Municipal Court's criminal file. When this occurs, Provincial Court judges cannot protect women and children from persons who have a criminal background that is known to the Municipal Court if this information is not available.
As Senator Chaput pointed out, there is no information sharing between the two systems. This means that women and children are at risk, particularly in cases of spousal abuse.
Are you aware of other such situations, outside Quebec?
[English]
Ms. Illingworth: I guess not specifically as of yet, but this is of great concern to us. It is unacceptable that the systems are not sharing information properly. It is to the detriment of mostly female victims of partner assault, as well as to children. It is unacceptable.
Senator Joyal: Thank you and welcome. My first question is in relation to your organization. Could you inform us again where you draw your main source of financing from, and what your total budget is?
Ms. Illingworth: Our total budget is about $150,000 a year. We were initially funded by the Canadian Police Association since we opened in 1993. However, at the end of 2009, they were not in a financial position to fund our operating budget any longer. They still provide us office space and many in-kind supports, but now we survive on a project-to-project basis with the Department of Justice Canada through the Victims Fund. We make applications to do special projects, and we can access up to $50,000 per project up to a maximum of five projects per year. That is how we survive now.
In addition to all the work that we usually have, we now have to do project work to sustain ourselves, unfortunately.
Senator Joyal: In other words, the maximum you can draw from the federal government on the basis of that project- based financing would be about $250,000?
Ms. Illingworth: Yes. There are some other pockets where we can get financial assistance. We receive a tiny amount of funding from Public Safety Canada. They have a sustaining funding program for national voluntary organizations working in criminal justice. We are the only victim-serving NGO that receives a small amount of that money. The pot is $1.5 million, and we receive $19,000 of that. The rest of that pot goes to offender-serving organizations.
There are little projects for different departments that we can apply to as well through Public Safety Canada and crime prevention, except we do not qualify for most of those. There are areas such as that where we can try to get additional projects.
Senator Joyal: Do you draw any money from the provincial governments?
Ms. Illingworth: No. We have tried a couple of times in Ontario to access some funding, but we have not qualified for provincial monies as of yet. Basically, we are relying on accessing federal government project monies.
Senator Joyal: How many people work in your resource centre?
Ms. Illingworth: I work full time; we have a part-time employee, and then we make use of students. We get criminology and social service work students from the universities and colleges in Ottawa.
Senator Joyal: How many requests a year would you receive from various victims' groups?
Ms. Illingworth: We receive in the hundreds to thousands now. With the new Victims Matter campaign that started a couple of weeks ago, we have seen a massive increase in calls to the office. We are featured quite prominently on that website now. Also, I think 1-800-O-Canada is directing calls to us, so we have been inundated in the last three weeks with new calls, people looking for help, having problems with compensation or with getting information. We are trying to hook them up locally with services because we do not want to duplicate any services that already exist.
We are definitely struggling internally with how we can serve all the victims who are calling us now with such a small staff.
Senator Joyal: What budget would you hope for to address the needs that you perceive are there but are not satisfied?
Ms. Illingworth: Half a million dollars would be a nice budget. It would allow us to hire dedicated staff to respond to victims, at least two employees. We could have someone for francophone callers and someone for anglophone callers. We do not have anyone doing full-time research. We also have the advocacy aspect of the organization for when we come to committees to talk to MPs and senators. We could do so much. We could build on the services that we offer if we had some increased funding.
Senator Joyal: Are you in touch with Aboriginal victims?
Ms. Illingworth: Yes; absolutely.
Senator Joyal: Of the people who come to your centre, what percentage would they be?
Ms. Illingworth: They are a smaller portion of the clients that we help, probably only 5 per cent to 10 per cent. However, we are certainly dealing with very difficult issues of violence on small reserve communities where everyone in the community knows what happened and an offender may go back to that community. Oftentimes they have a different world view, so they are not necessarily expressing the same concerns about offenders as other clients do.
We could accomplish much more outreach too if we had increased funding. We could try to access people in the smallest communities across the country. Many victims do not access victims' services or any type of support. Therefore, to try to get information out across the country about services that exist is something we feel is hugely important.
Senator Joyal: Do you have a site offering the various services that might exist at the provincial levels, at other levels or through other private groups that might come in to support victims?
Ms. Illingworth: Yes, we do. We have received donations in the past from police associations across Canada as well as some individuals and magazines that publish articles about victimization across Canada, but we are not a charitable organization.
Senator Joyal: You do not issue tax receipts for donations that you receive, is that correct?
Ms. Illingworth: Right. We cannot do that because we are a non-profit organization, so that would probably hinder the amount of public or corporate support that we can get as well.
Senator Joyal: Upon reading your brief this morning, among the cases you mentioned, I noticed that there are two from Ontario and two from British Columbia. You said that you were in the room or that you read the transcript of the witnesses who we heard yesterday.
I am concerned by the instructions given to the Crown prosecutors when they are faced with a case of domestic violence involving the murder of a parent. In my opinion, such a case by itself is a testimony to the breakdown of the couple, and the breakdown of a couple normally has an immediate impact on the child or children.
The case that prompted Senator Banks and Mr. Andrews to bring their bill forward is a clear illustration of that. It seems to me that as much as it is welcoming to amend the Criminal Code to add the specific protection of the child or children, it is not enough to ensure that we fill the cracks, as senators around the table have said. There are many cracks in the system. Senator Chaput and Senator Boisvenu have identified some of them. There are the cracks in the process of the Crown prosecutor, which I think is an important one.
We have not had the opportunity to look into the various instructions that provinces expect the Crown prosecutor to follow when they are faced with such a case. We hope that they are all similar or at least all able to address that situation.
We tried to get a commitment from the Department of Justice Canada that when this bill is adopted by Parliament, that they would send instructions to the various justices about this being a new law in the Criminal Code, one they would have to take into account. It is not just business as usual. We think we are doing something substantial and that Parliament wants to draw the attention of the judiciary when they are faced with a request to grant bail or not. Those are all steps that need to be taken to ensure that at the end of the day we will have filled some of the cracks in the system.
Listening to you and upon reading your brief, it appears that these situations keep reoccurring. I am always amazed when I read those cases, and I try to understand how a judge or a Justice of the Peace could so easily grant bail when there is an alleged murder of a spouse and the other partner is the prime suspect. What immediately comes to mind is the child or children. There is no doubt that the child or children are more or less hostages in a situation that they cannot say anything about or fight or defend themselves against. Immediately, in that case, the protection of the public should be the protection of the child, who is the most vulnerable in that situation.
We need to do as much as we can at all levels — not only at the level of the Criminal Code but also with the way we manage the Criminal Code, which is at various levels of the system, as you know. This should be an important preoccupation if we really want to improve and learn from the Bagby case as to how we can protect the child and the spouse, of course, who becomes the prime victim of the murder.
I think we are still at the door of changes that should be made and amendments that should be brought into the system to ensure it addresses that situation.
Ms. Illingworth: I agree with you completely. It does not necessarily have to be all Criminal Code changes. As you say, policy changes can help fill some of these cracks, especially when we are talking about communication and the sharing of information. It makes absolute sense. I hope the Department of Justice will issue some sort of notice to the judiciary that draws special attention to the children if and when this hopefully receives Royal Assent. There cannot be any harm done. It is another tool. In my mind, it can only be a positive step.
Senator Banks: I have one question that is related directly to the bill before us and another that is not, and I apologize for the bootlegged question, but I want to get a confirmation. I will ask the second question first, which has nothing to do with the bill before us but rather with what you said. I want to ensure that I understood.
You said that there is a federal government program from which you receive $19,000 a year and that the size of that program is a $1.5 million. You also said that you are a non-profit agency. Are you an agency of any order of government?
Ms. Illingworth: No. We are non-governmental.
Senator Banks: Who is your proprietor? How are you registered?
Ms. Illingworth: We are a corporation.
Senator Banks: A not-for-profit corporation?
Ms. Illingworth: Yes.
Senator Banks: I do not understand why you are not eligible to apply, and if you applied, why you would not receive or have the capacity to receive charitable donations and issue tax receipts. Do you know why that is?
Ms. Illingworth: It is something that our organization could do, but it is very complex to be a charitable organization in these fundraising times. Being so small, it would add to the complexity of all of our bookkeeping.
Senator Banks: Do you not want to get larger?
Ms. Illingworth: Yes, we do. There are also many restrictions with charities on appearing before government and lobbying. They can advocate and educate, but the reason that we were created as a non-profit was to be a loud voice.
Senator Banks: You have considered that, is that correct?
Ms. Illingworth: We are still considering it, absolutely.
Senator Banks: I do not want to question the good that is done by the Canadian Association of Elizabeth Fry Societies, the John Howard Society of Canada, et cetera; and I am not talking about robbing from any of those Peters to pay your Paul. However, it seems to me that that pot ought to somehow be made larger because you are getting the short end of that stick with the proportion of money that you receive from whatever federal program that is, given that you are advocating for victims.
My other question has to do with the bill. In your considerable experience, do you know of an obligation, requirement or convention of any kind in law, common practice or convention that obliges the Crown prosecution in a serious and violent crime when dealing with an application for bail to diligently and avidly search out and be in possession of those facts so that, should they decide to argue against the granting of bail, they are equipped to present the information to the judge who is making that determination under the provisions that now exist in the Criminal Code for the protection of the public, victims and witnesses?
Ms. Illingworth: I do not know enough. I do not think I could answer that, specifically about any of the Crown's obligations.
I do know that Bill C-79 added to the Criminal Code that a judge must consider the safety of victims. That was a while back, in 1999. However, I do not know enough about the specifics of the Crown's role.
Senator Baker: Since you mentioned 1999, I will ask my question referring to 1999.
I just wanted clarification of your answer to Senator Joyal about your budget. It is incredibly small. However, I can recall you applied for and received intervener status in the famous case of R. v. Sharpe before the Supreme Court of Canada. Your advocacy on behalf of victims is well known. I am amazed at the minute amount of your budget. I wanted to put that on the record. I do not know whether you can give an explanation for that, whether it is pro bono or what, but it is certainly amazing.
Ms. Illingworth: We had the benefit, at that time, of using the resources of the Canadian Police Association through their attorney, adding ourselves onto that.
Senator Baker: Can you do that?
Ms. Illingworth: I do not know if we can any longer.
Senator Joyal: At the time they could do that because they were under the auspices of the Canadian Police Association.
Senator Baker: I understand.
Ms. Illingworth: We would love to have legal staff to argue for the human rights of people harmed by crime, that crime is a violation of human rights. If we had a larger budget, we could do that all over the place. We could have legal staff to intervene on behalf of victims and, of course, not charge anyone for these services.
Senator Baker: You have certainly made your contribution in the famous case I just cited and probably in others.
Senator Watt: Welcome to the committee. I found your presentation very interesting. You seem to have a great deal of experience.
I have one question, and then I would like to return to the wording of the bill itself. To continue on with what Senator Joyal raised about Aboriginal issues, does your organization deal with mainly First Nations, or does it also deal with Inuit people in the Arctic?
Ms. Illingworth: We deal mostly with First Nations. We have had some inquiries from Inuit organizations as to whether we could help in the North. Through our newsletter, we reach people providing services to Inuit people. Absolutely, if anyone needed our services, we are open to assisting every victim and survivor possible.
Senator Watt: However, if I understood correctly, you do not have the necessary resources to do the kind of job that you would like to do?
Ms. Illingworth: Exactly.
Senator Watt: That makes it very difficult.
Has your organization has been in existence since 1993?
Ms. Illingworth: We opened in 1993; we were incorporated in 1992.
Senator Watt: Do you see this organization expanding in due time down the road?
Ms. Illingworth: Absolutely. We would love to continue to grow, increase the voice we have and help to increase the recognition of the harm done by violence in this country.
Senator Watt: I want to return to the wording of the bill.
I know this has already been passed by the House of Commons. I will just raise the issue about what bothers me when looking at the actual wording, simply because we seem to be a bit shy about mentioning children. To a certain extent we are talking about them, but we are not focussing on them.
From what we have heard, the safety of the public is already taken care of; it is already within the law. However, children themselves are not explicitly mentioned anywhere for safety purposes.
For example, if we were to remove "public'' and put "children'' in here, would we be more focused on what we are talking about? We are talking about them, but we are not really focussing on them. If I understood correctly from the legal experts, they basically said that parts are missing within the Criminal Code. If that is the case, what is wrong with the idea of building the law in such a way that the focus is on the child? Could I have your view on that?
Ms. Illingworth: I heard the witness yesterday saying that it might be harmful to specify children and not other vulnerable groups. For us, specifically highlighting that children need special consideration and special protection makes sense. I am not a legal expert. I am just a person who talks to survivors and tries to have their voices heard.
Senator Watt: Could I ask the sponsor of the bill a question? Was this discussed within your strategy when you began to formulate it? I remember in your opening remarks you said that certain things had to be taken into consideration, such as the Charter of Rights and Freedoms and things of that nature. Is that part of the reason why we are not focussing on the point of what we are talking about?
Senator Banks: I have to answer your question in two parts.
First, why did we not make a long list of things to call to the attention of judges? The simple answer is we wanted to take one step at a time. Senator Joyal has used the term "we are at the door'' of changing this. We wanted to take a step that we knew would work and did not offend any of the Charter provisions. At least, we were assured that that is so. We do not presume to say that this closes all the gaps, fills all the cracks, answers all the questions and will solve every problem. It will not. We hope that this opens the door to doing that. Senator Carignan and I have discussed things that could be done that flow logically from this.
The reason we settled on this question is because we were looking to solve a specific problem that related to children, who are not specifically addressed, in our view. Senator Baker referred to this earlier by explaining that, in this case, Zachary Turner was not a victim within the meaning of the present provisions of the Criminal Code having to do with bail. He was not a witness to the crime that was in question, and he was not a victim of the crime that was in question, namely, Shirley Turner murdering her partner.
One of the things we looked at was trying to widen or make more specific the definition that is in the code of what is meant by "victim.'' We could not find a way to do it that would include children who might be involved. The witness has quite correctly observed that the House of Commons broadens this from children of the accused to any children under the age of 18 because it is not just children of the accused. It might be nephews of the accused or neighbours of the accused or acquaintances of the accused — anyone under 18. We could not find a way to say that victims included those people because those people are usually not victims until they are killed.
Zachary Turner became a victim when his mother killed him, but not when she murdered his father. I am only using this specific case here.
The short answer to your question, Senator Watt, is we looked at it as hard as we could, and I want senators to know that Mr. Andrews is not an expert, nor am I, in this respect. We consulted with many others, including some who are present, who have given valuable advice about this, including Senator Joyal and Senator Baker, who had personal knowledge of the case that gave rise to it.
We also consulted, needless to say, with legal counsel of the Senate and the House of Commons, and spent a considerable amount of money on outside consultation. You will know we did not rely on in-house information, and I spent some money from my own personal office budget. I had a list: You could do this, but you would bump into this. You could do this, but you would bump into that. If you push in here, it bulges out over there. We reduced it, distilled it, if you like, to something that we hope will sometimes work, that will, as I have said before endlessly, do no harm and that will survive any Charter challenge.
[Translation]
Senator Boisvenu: Senators Joyal and Baker have brought up a very interesting point, that of the funding of your organization. Heidi, you and I have known each other for some five years, since I myself founded a victims support group, the Association of Families of Persons Assassinated or Disappeared in Quebec that regroups 600 families and reaches nearly 15,000 citizens known as incidental or secondary victims.
Helping criminals is a federal responsibility while helping victims is of provincial jurisdiction; thus, the lack of funding of victims support groups and the quite adequate funding of organizations dedicated to helping criminals.
Yesterday, in my office, I met a family from Newfoundland and Labrador whose daughter was murdered by her spouse. The murder of their daughter cost them $20,000. Helping victims being a provincial responsibility, they received no financial assistance from the province. To make matters worse, the perpetrator's defense, often ensured by the state through legal aid, will cost nearly $50,000.
And so, here is my question: If Canada were to adopt a Victims' Bill of Rights, first of all, would victims benefit from as much assistance as criminals do? Second, would organizations such are ours also benefit from additional support?
I would like to remind you that in 2006, the Minister of Public Safety wished to help our organization by providing a $50,000 grant, except that, in Quebec, one cannot receive any direct funding from the federal government. Any funding has to go through the provincial government whereas, in other provinces, the federal government can offer direct funding to victims' advocacy organizations.
So that, if Canada were to adopt a Victims' Bill of rights, would organizations such as yours, as well as victims from one province or another, have equal support?
[English]
Ms. Illingworth: Yes, exactly, you have highlighted an important issue and problem. While the Charter is a protection for those accused of crime, it is silent about people harmed by crime, and one of our main positions is that victims of crime should be guaranteed a certain standard of treatment.
Currently, rights for victims of crime through provincial and territorial bills of rights are not enforceable rights. They are just statements about what victims should have, be entitled to and how they should be treated, but there is no possibility to challenge any of that in court. They are not enforceable rights.
A charter for victims would be a very strong statement and would bring into balance the criminal justice system, which, despite what some people say, is very unbalanced in our observation. I know there are academics and people working on behalf of offenders who disagree with that. However, through talking to organizations such as yours, and talking to Victims of Violence, Families Against Crime & Trauma and so on, we know that all the tiny groups that exist barely make do. Their staff are not paid. The work they are doing is out of their own time and money. Many families expend huge amounts of money trying to access justice for their loved ones. So much still needs to be done to improve the treatment of crime victims in this country and to support them in their journeys toward healing.
We hope that soon all the governments will recognize that the work we do to support victims and help victims recover means that they go back to work sooner and they remain productive members of society. That is a benefit to society. The services our organizations provide are very valuable, and, unfortunately, they are underfunded.
The Deputy Chair: Thank you, Senator Boisvenu.
Colleagues, that appears to conclude our questioning.
On your behalf, I want to thank Ms. Illingworth for a wonderful contribution to the efforts in which our committee is involved with this particular bill.
We commend you for the tremendous work you do on behalf of victims. To put it mildly, you certainly are not over- resourced; you are one person, with a bit more around you, it seems, doing what you do. Congratulations and thank you. I am sure that in the future with other bills before this committee, we would welcome you back. Thank you very much.
Ms. Illingworth: Thank you.
The Deputy Chair: Colleagues, on the agenda for today, in addition to our witness, we are to consider whether we are prepared to proceed to clause-by-clause analysis of Bill C-464. I know that the practice of the committee has not necessarily been cast in stone to do clause by clause on the same day that witnesses are heard.
I thought what might be useful for our work is if we were to go to an in camera session and have a brief discussion to confirm whether we are or are not ready to proceed with clause-by-clause consideration today. Depending on the outcome of that, we will see where we proceed today and whether we proceed with clause by clause. If that is agreeable, we will go to an in camera meeting.
Is that agreed, colleagues?
Hon. Senators: Agreed.
The Deputy Chair: That being the case, would everyone who is not a member of the committee or staff please leave the room, and if you could wait outside, we should not be too long.
Senator Banks: For the record, you need to have a motion that would allow staff to stay in the room.
The Deputy Chair: It is so moved by Senator Runciman; is that agreed?
Hon. Senators: Agreed.
(The committee continued in camera.)