Justice Committee on Nov. 4th, 2010

[Kim Pate]

If they have legal advice.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

If they have legal advice. So women who are charged with serious offences in Canada do not have access to a lawyer?

[Kim Pate]

They have access to a lawyer, but I'll give you—

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

But not a good lawyer?

[Kim Pate]

Sometimes they have access to a lawyer, but not necessarily access at the times when they're making those decisions. So for instance we have, just talking about—

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

But I guess I'm saying if they have access to a lawyer, then they must be getting good legal...if they're pleading guilty when you believe they shouldn't be.... And then maybe in your explanation to me as to why they're not getting the kind of legal advice they should, maybe that's the reason you are currently teaching young people who want to become lawyers. Maybe that's why you're doing that. I'm supposing that. I'm reading that into your résumé, but you can correct me if I'm wrong.

[Kim Pate]

In terms of accessing, we know that many of the women we work with will initially provide the information to the police in the first place. They'll often even self-report. They'll want to plead guilty, they may plead guilty—

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Excuse me for interrupting, Ms. Pate, but this is for the average person out there.

By that answer, you're suggesting that before they say anything, the police have taken their statement before they have read them their rights, that they actually do have, in fact, the right of access to a lawyer as per their constitutional right?

[Kim Pate]

Yes.

You'll find—and I'm sure you know this if you've looked at this—that a lot of times people will make statements long before they see a lawyer, or they won't even know how to get access to a lawyer. And that's increasingly the case, as it's more difficult to access legal aid. In fact, the Chief Justice of the Supreme Court of Canada has spoken about the concern of increasing numbers of unrepresented individuals. So I think it is a concern.

Going back to your other comment, I think there are situations where we have good pre-sentence reports, very good representation. Of course, there are many lawyers trying to do the best they can with increasingly limited resources and increasingly limited options. With the cuts that have been happening to social programs, health care, education, we also see fewer options in the community. When you talked about our goals, part of our goal is to try to ensure that instead of more money and more and more resources being put into prisons, and literally sucking those resources out of the community where the individuals are going to return eventually anyway, those resources are put into alternatives in the community.

[The Chair, Conservative, Ed Fast]

Time's up. Thank you.

We'll go to Mr. Rathgeber. No? All right.

Does anyone wish to speak?

When we started, most of you were talking about maybe 4:30. We're now at quarter to five. Do you want to continue? That's fine.

All right, so Ms. Jennings is next, and then Mr. Comartin to finish.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Ms. Pate, at one point Mr. Norlock asked you a question concerning whether or not women should be criminalized, and you began to give an example of a specific case, I believe, regarding a woman who might have not had access to a lawyer and why she would have self-reported, hyper-criminalized herself, or whatever. Could you continue? Because I know you weren't able to actually give that example.

[Kim Pate]

Sure. Well, we have a number of situations, particularly since the policy of mandatory charging and countercharging started to happen in violence-against-women situations, where usually it's the woman calling in to a 911 operator, for instance, reporting the situation, sometimes even reporting that she herself has hit him or thrown something at him to try to ward him off. When the police arrive and the statements are taken, she's already provided a statement by that. And when she's confronted with, “So you've already assaulted”, she often would say yes—and I can't give you exact numbers, but I can tell you that it's too often, it's a common occurrence. And then they plead guilty to them, even when sometimes the primary perpetrator doesn't plead guilty.

So we see this accumulation of what looked like more serious offences—I'm not saying assault isn't serious, any assault is, but it looked like more serious offences—and they start racking up charges. And they become very aware, the women I've spoken to, that from their perspective there's no point in fighting it because they're told they've already given the evidence. They believe that.

And you know, it's not that a lawyer is misstating the situation; they have provided that evidence before they even know.... In a 911 call they've already said sometimes they're doing it. Or at the first opportunity, when the police arrive and the fellow is saying “She threw the wine bottle at me”, or the plate or whatever, they say “Did you do that?” “Yes, I did”, and she takes responsibility.

So those are some of the common assault charges—not “common assault” but common assault charges—that we see with women too.

And then we see a number of other instances, even where they have defences, and they may be told they're going to be in custody for a period of time if they go for trial. I just dealt with a woman who just got out of prison the week before last. She had won her conviction—and obviously the sentence appeal too—for second-degree murder. Immediately, she was offered time served for a manslaughter plea. Everybody knew. The lawyer asked me to go in and speak to her, because she immediately said “I'll take the deal”, and the lawyer said “She has a strong self-defence case, we know that”. She knew that, but the option was no bail. Because she lived on a reserve, there's nothing to put up. If you're on a reserve you don't own your house. Even if you own your house, you don't, the band council owns it. So she had nothing to put up. I even offered my house up, and she refused that.

So she pled guilty to manslaughter in a context where everybody around that case saw she had a self-defence claim. And it wasn't that it was a bad lawyer. A very good lawyer tried to convince her, asked me to go in and try to convince her, and she still pled guilty to manslaughter.

Now she's out with her child. That was the motivation: she didn't want to risk being another two years awaiting trial. Even if she was acquitted she'd be another two years away from her child. So she took a conviction for manslaughter in a context where, yes, I do believe she shouldn't have any conviction for that case.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you very much.

[The Chair, Conservative, Ed Fast]

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

On the point by Mr. Dechert, again, that same correspondence we had that didn't get before the committee last time, this portrayal of the number of times people are going to be faced with application, just so he knows.... I don't know if you have any evidence to the contrary, Ms. Pate, but of those applications that were made, and some denied, only four applied a second time, and there's never been an application for a third time. Never.

Do you have any reason to believe those figures are wrong?

[Kim Pate]

I have no reason to believe it. It certainly hasn't applied to women at all. None of them who were denied have reapplied.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

All right.

The second point I would make, with regard to Olson's victims, is that we have a provision in the code that doesn't allow multiple murderers to apply for early parole.

One final point on that: I'm not clear from the evidence you've given us, but you left us with this impression, so let's just be clear, that of the cases you've dealt with, in 50% or fewer of those cases the family of the murder victim attended the hearing before the jury. Is that correct?

[Kim Pate]

That's correct.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

We heard the last time, and I believe I'm accurate—I just couldn't find it in my notes—that when it's men, somewhere between 30% and 40% of victims attend the hearings before the juries. Would that sound correct to you, as well?

[Kim Pate]

Yes, I have no reason to dispute that.

I suspect you'll see the numbers going up now there is assistance to get there. I think that some of the reality was people couldn't afford to go before, so we've seen the increase since those provisions.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

In that regard, in terms of assisting victims--and again you were cut off in your answer--could you explain to us what we could be doing at an earlier stage to reduce the victimization, to assist the victims, the families of the victims of murder, of homicide, in this country?

[Kim Pate]

Again, this is just my opinion, and certainly lots of people have different opinions. But those who work in the area of trauma and recovery talk about the importance of early intervention, as early as possible, to provide support for individuals who are going through the grief, the loss, the anger—they understand all those emotions—to try to assist them to get to a place where they can, at the very least, move on with their lives.

All the information I have, and certainly the information we've tried to implement in our family, is to ensure that as issues arise they're dealt with immediately and things are not held off.

There are very few examples. There was an example, it wasn't murder, but robbery victims in the U.K. A program was implemented by a police force there—it was a judge from here who had a family member experience it and related it to me—where after an offence had occurred and the investigation was completed, a team went in to try to put back the house, fix things up, and a team went in to try to provide therapeutic support to the victims immediately thereafter so they could move on as best they could, deal with the very real emotions, but move on. That's the best advice I've received consistently about what--

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I know we're running out of time.

Do we have any of those programs right across the country currently?

[Kim Pate]

We don't have them right across the country currently, and it's left to individuals to fund them themselves, largely.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

And that includes people who are family members of the victims of murder?