Bill C-32 (Historical)

Victims Bill of Rights Act

An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts

This enactment enacts the Canadian Victims Bill of Rights, which specifies that victims of crime have the following rights:
(a) the right to information about the criminal justice system, the programs and services that are available to victims of crime and the complaint procedures that are available to them when their rights have been infringed or denied;
(b) the right to information about the status of the investigation and the criminal proceedings, as well as information about reviews while the offender is subject to the corrections process, or about hearings after the accused is found not criminally responsible on account of mental disorder or unfit to stand trial, and information about the decisions made at those reviews and hearings;
(c) the right to have their security and privacy considered by the appropriate authorities in the criminal justice system;
(d) the right to protection from intimidation and retaliation;
(e) the right to request testimonial aids;
(f) the right to convey their views about decisions to be made by authorities in the criminal justice system that affect the victim’s rights under this Act and to have those views considered;
(g) the right to present a victim impact statement and to have it considered;
(h) the right to have the courts consider making, in all cases, a restitution order against the offender; and
(i) the right to have a restitution order entered as a civil court judgment that is enforceable against the offender if the amount owing under the restitution order is not paid.
The Canadian Victims Bill of Rights also specifies
(a) the periods during which the rights apply;
(b) the individuals who may exercise the rights;
(c) the complaint mechanism for victims and the requirements for federal departments to create complaint mechanisms; and
(d) how the Canadian Victims Bill of Rights is to be interpreted.
This enactment amends the Criminal Code to
(a) align the definition of “victim” with the definition of “victim” in the Canadian Victims Bill of Rights;
(b) protect the privacy and security interests of complainants and witnesses in proceedings involving certain sexual offences and ensure that they are informed of their right to be represented by legal counsel;
(c) broaden the conduct to which the offence of intimidation of justice system participants applies;
(d) expand the list of factors that a court may take into consideration when determining whether an exclusion order is in the interest of the proper administration of justice;
(e) make testimonial aids more accessible to vulnerable witnesses;
(f) enable witnesses to testify using a pseudonym in appropriate cases;
(g) make publication bans for victims under the age of 18 mandatory on application;
(h) provide that an order for judicial interim release must indicate that the safety and security of every victim was taken into consideration;
(i) require the court to inquire of the prosecutor if reasonable steps have been taken to inform the victims of any plea agreement entered into by the accused and the prosecutor in certain circumstances;
(j) add victim impact statement forms to assist victims to convey their views at sentencing proceedings and at hearings held by Review Boards;
(k) provide that the acknowledgment of the harm done to the victims and to the community is a sentencing objective;
(l) clarify the provisions relating to victim impact statements;
(m) allow for community impact statements to be considered for all offences;
(n) provide that victims may request a copy of a judicial interim release order, probation order or a conditional sentence order;
(o) specify that the victim surcharge must be paid within the reasonable time established by the lieutenant governor of the province in which it is imposed;
(p) provide a form for requesting a restitution order; and
(q) provide that courts must consider the making of a restitution order in all cases, and that, in multiple victim cases, a restitution order may specify the amounts owed to each victim and designate the priority of payment among the victims.
The enactment amends the Canada Evidence Act to provide that no person is incompetent, or uncompellable, to testify for the prosecution by reason only that they are married to the accused. It also amends that Act to add a new subsection to govern the questioning of witnesses over the age of 14 years in certain circumstances.
This enactment amends the Corrections and Conditional Release Act to
(a) align the definition of “victim” with the definition of “victim” in the Canadian Victims Bill of Rights;
(b) permit victims to have access to information about the offender’s progress in relation to the offender’s correctional plan;
(c) permit victims to be shown a current photograph of the offender at the time of the offender’s conditional release or the expiration of the offender’s sentence;
(d) permit the disclosure of information to victims concerning an offender’s deportation before the expiration of the offender’s sentence;
(e) permit the disclosure to victims of an offender’s release date, destination and conditions of release, unless the disclosure would have a negative impact on public safety;
(f) allow victims to designate a representative to receive information under the Act and to waive their right to information under the Act;
(g) require that the Correctional Service of Canada inform victims about its victim-offender mediation services;
(h) permit victims who do not attend a parole hearing to listen to an audio recording of the hearing;
(i) provide for the provision to victims of decisions of the Parole Board of Canada regarding the offender; and
(j) require, when victims have provided a statement describing the harm, property damage or loss suffered by them as the result of the commission of an offence, that the Parole Board of Canada impose victim non-contact or geographic restrictions as conditions of release, where reasonable and necessary, to protect the victims in relation to an offender who is the subject of a long-term supervision order.

Victims Bill of Rights

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Speaker, part of the reason for my passion is that my sister was strangled to death when I was two years old. Our family was a victim of a circumstance. This was in 1949. Times were different. Police officers have come so very far from then, but even at that time, the RCMP officers involved did a very good job dealing with our family.

However, again, it is to come to that place of understanding of what motivates and creates these situations and to pre-empt them from ever happening in the first place. In our family's case, it was the mental illness of a family member, but in many cases, it is drug driven or other aspects. There are so many aspects of society we can reach out and touch if we want to do it. The committee is a place where this specific bill can be worked on so that we can accomplish that.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, it was a very moving and affecting speech. The kinds of issues we are talking about here, and the reasons we want to be able to provide rights to victims that are accessible, are on our minds, but of course, we would all rather that the victimization had never taken place at all, particularly in the heart-wrenching story the hon. member shared with us.

I want to ask if he has had a chance to look at the recommendations that have come from the federal ombudsman for victims' rights. There were very few of them that made their way into the bill, and I am wondering if there are any specific ones. One that comes to mind for me is the idea that because there is so much going on that is emotionally wrenching at the time of victimization, there should be a standard printed card. It is a system used in other jurisdictions, I believe in California. It sets out for the victims where to go for help and how one identifies oneself as someone who would continuously get notifications in the train of the correctional process, and so on. I would ask my hon. colleague if he has any thoughts about the recommendations of the federal ombudsman for victims' rights.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Speaker, one of the things that is spoken of very often is giving victims a voice, but the other side is financial and psychological support.

For people who have been victims of these types of crimes, particularly where someone's life is lost, or a family member's, their world is destroyed in front of them, and they need all the help they can get. Their community helps, but the government having in place guidance, and having it clearly available to people, is very important.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am honoured to have an opportunity to participate in the second reading debate on Bill C-32, the victims bill of rights.

This historic bill marks the culmination of the government's effort to finally give victims the voice and protection they deserve in Canada's criminal justice system.

I would like to pay particular attention in my speech to the rights and amendments relating to restitution that are designed to address the concerns expressed by many victims regarding the financial burden of crime. I will also discuss the amendment related to the victim surcharge.

We know that victims pay a disproportionate percentage of all costs related to crime. In 2008, a Justice Canada study found that victims pay 83% of the cost of all crime. A more recent Justice Canada study, published in 2013, found that victims also pay 83% of the cost of violent crime.

These findings are shocking. The rights proposed in this bill aim to correct this imbalance and to relieve the victims of some of the financial burden of crime.

On October 30, 2012, the Federal Ombudsman for Victims of Crime made the following statement about the impact of crime on victims:

These costs include lost productivity and wages, costs of medical and psychological care, and time away from work to attend criminal proceedings.We also hear from victims about their not being able to afford counselling sessions...

Therefore, members will understand that it is fair and logical for criminals to make a contribution and to pay restitution to the victim for the offences committed. Naturally, the provinces provide victim services, but why should honest taxpayers be the only ones to pay?

The Canadian victims bill of rights proposes to clearly indicate that every victim has the right to have the court consider making a restitution order against the offender and has the right to enforce the order as a civil judgment where not paid.

What is the purpose of a restitution order? The Criminal Code states that the purposes and principles of sentencing are to provide reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims and the community.

Restitution orders, which help cover the victims' monetary losses due to, for example, bodily and psychological harm or damage to property caused by crime, follow these principles.

Restitution has been recognized in modern countries for a long time. In the United Kingdom, the right of a victim's family to compensation in any case of wrongful death was reinstated in legislation in 1946. In the United States, restitution re-emerged in the early 1900s, when new sentencing laws allowed the courts to impose alternatives to incarceration.

In Canada, since its inception in 1892, the Criminal Code has permitted a sentencing court to order compensation for property lost as a result of the commission of an offence. The Canadian provisions governing compensation were mostly unchanged until amendments in 1996 repealed the compensation provisions, replacing them with restitution order provisions. The terminology was changed to reflect that “restitution” refers to payments the offender should make, while “compensation” generally refers to payments from the state.

The amendments proposed in the victims bill of rights would be important for promoting a sense of responsibility in offenders and for their acknowledging the harm done to victims. Right now, judges do not have to consider the possibility of a restitution order. The victims are forgotten, because this provision of the Criminal Code is very rarely used. This means that the court ignores the suffering victims often face.

To ensure that the existing legislative framework properly supports these rights, the bill would make a number of amendments to the restitution regime in the Criminal Code.

The current regime in the Criminal Code allows courts to order restitution orders for loss, destruction, or damage to property as well as financial damages resulting from the commission of an offence, such as the loss of income, expenses associated with moving out of a household shared with an offender, or costs associated with identity theft. The amount sought in a restitution order must be readily ascertainable, which means that the amount of the loss is easy to calculate and is not in great dispute.

If the offender fails to pay the restitution as ordered, the Criminal Code allows the victim to whom restitution is owed to file the order in civil court and to have it enforced as a civil judgment. The government believes that restitution orders can be very useful sanctions in achieving the sentencing objectives of acknowledgement and reparation for the harm done to victims.

For some, restitution orders represent a way for offenders to make amends and contribute to society. It can also be a way of reconciling with the victim.

However, there is evidence to suggest that the needs of victims of crime are not being met through the current restitution regime. For example, Statistics Canada reported in 2010-11 that restitution orders form part of 82% of the sentences for crimes against property but are rarely imposed in relation to crimes against a person, only 10%.

In order to ensure that restitution rights stated in the Canadian victims bill of rights are meaningfully realized, the bill proposes to amend the Criminal Code to direct that the judge shall consider ordering restitution as part of an appropriate sentence in all cases. Where the court decided not to order restitution, the bill would require the court to state on the record the reasons for its decision.

For the victims, this is a great improvement because the court will have to ensure that it considers every situation and thus every case that comes before it.

However, before deciding to order the offender to pay the restitution or not, the court would have an obligation to inquire of the prosecutor if reasonable steps had been taken to provide the victims with an opportunity to indicate whether they were seeking restitution for losses or damages.

This is a great improvement because victims will have the opportunity to determine whether they are going to seek damages. They will have the right to be heard and to tell the court about the harm done. In that way, we will give victims one more voice in the justice system. For a victim, being able to obtain a restitution order is another step in the healing process and towards a more normal life.

Let us remember the victims, who pay out of their own pockets for such atrocious expenses as the cleaning of the crime scene, or property destroyed by a thief.

The proposed amendments would also provide victims with an optional form in the Criminal Code to assist them in calculating and describing their readily ascertainable losses. The courts would be allowed to accept this information in other formats, as approved by the court.

A court of law could, on its own initiative or at the prosecutor's request, adjourn the proceedings to give victims a chance either to indicate whether they are seeking restitution or to determine the loss or damage, as long as the adjournment does not hinder the proper administration of justice.

I can summarize in one word what will be gained from updating the restitution scheme: dignity. With this change, the victims' human dignity will be fully recognized. The scheme will more effectively recognize the harm done to victims and will help provide solutions.

One of the fundamental objectives of this bill is to give victims the voice they deserve in the criminal justice system. In the context of restitution, this would be achieved by permitting victims to speak to their readily ascertainable losses in a victim impact statement that is to be taken into account in determining the sentence to be imposed on an offender.

This bill also recognizes that the offender's financial means or inability to pay the restitution order must not by itself prevent a court from ordering a restitution order. This represents a codification of decisions of appellate courts and of the Supreme Court of Canada to the effect that the means of the offender must be considered along with other factors in determining the totality of the sentence.

The necessity for victims to receive reparation for their losses and damages was the foundation of the proposed reforms regarding the payment of restitution orders.

The proposed amendments would permit the court to either order that the full amount of the restitution order be paid on the day of sentencing or in a specified number of days following sentencing or in accordance with a payment schedule the court determined to be reasonable in the circumstances.

In addition to this approach, the court would provide that in cases of multiple victims who seek restitution, the court would specify the amount payable to each individual, and where applicable, the order of priority in which victims were to be paid. The offender's failure to pay restitution by the day specified in the order or the failure to make a periodic payment required under the order would allow the victim or victims to enter any amount that remains to be paid as a civil judgment in any court of Canada.

I believe that a carefully tailored restitution regime in criminal law would effectively ensure that offenders acknowledge the harm done, provide victims with effective financial reparations, and avoid lengthy civil proceedings.

Another important element of the bill is the proposed amendment relating to the victim surcharge. A victim surcharge is an additional penalty imposed on convicted offenders at the time of sentencing. It is collected and retained by the provincial and territorial governments and is used to help fund the most important programs and services for victims in the province or territory where the crime occurred.

This money does not go directly to the victim. It is placed in a special fund in the province or territory. The fund, sometimes called a victim assistance fund, is used to provide services and assistance to victims of crime, such as information on the criminal justice system and court processes, referrals to counselling, court support for vulnerable persons, assistance in preparing victim impact statements, and compensation programs.

Bill C-37, the Increasing Offenders’ Accountability for Victims Act, came into force October 24, 2013. It amended the victim surcharge provisions of the Criminal Code to double the amount an offender must pay when sentenced and ensured that the surcharge is applied in all cases. Bill C-37 came into effect, and it has been reported that some courts are providing exceedingly long periods of time to pay the surcharge, some up to 60 years.

This bill proposes to clarify that courts must require offenders to pay the victim surcharge within the time established by the Lieutenant Governor in Council of the province in which the surcharge is imposed. If no time has been established, the surcharge would be payable within a reasonable time after its imposition.

Judges will therefore have some flexibility to impose victim surcharges, which will have to be paid within a reasonable timeframe.

“Reasonable time” has been interpreted by the courts as a question of fact depending on the circumstances of the case and cannot be decided in the abstract. Reasonable time must allow the debtor to meet the demand. The criteria of “reasonable” would still preserve a certain level of judicial discretion in describing the timing of the payment of the surcharge, but would not allow the debt to extend into an absurd or unreasonable period. This discretion would still allow the judge to take into account the offender's financial and other relevant circumstances in establishing a reasonable time limit for the payment. This approach recognizes the fact that the test of reasonable is used throughout the Criminal Code and, although not defined, is well understood, interpreted, and applied by the courts.

By virtue of subsection 734.7(1) of the Criminal Code, courts continue to have discretion not to commit for imprisonment a person who by reason of poverty cannot pay a fine, even after a reasonable time has been allotted.

I wish to reiterate that the proposed amendments relating to restitution and to surcharges in this particular bill are very important in addressing the concerns expressed by many victims and in meeting the objective to give victims the voice and protection they deserve in the Canadian criminal justice system. I urge all members to join me in supporting the Canadian victims bill of rights.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Speaker, according to Sue O'Sullivan, Federal Ombudsman for Victims of Crime, Bill C-32 needs to be amended, as it is too weak and fails to address many aspects of the problem. The main problem, in her view, is that the proposed charter gives victims rights but provides little in the way of enforcement.

Does the member think, like the ombudsman, that victims should be able to consult a lawyer without delay, so that they can assert their rights?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I want to thank the member for her question.

The committee will be hearing many witnesses, of course. The ombudsman will surely take part in these discussions. We will listen to each and every recommendation that could help improve the bill and make it more effective.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I want to thank my colleague on the justice committee for his speech. I realize the speech focused primarily on the provisions of the bill that deal with restitution and surcharges, but I want to ask him about clause 24 of the bill, which deals with aboriginal justice.

My colleague would know full well that aboriginal people are grossly overrepresented in the prisons of our country, and there is incorporated into the Criminal Code something called the Gladue principles, which require a judge to consider all available sanctions other than imprisonment, with particular attention to the circumstances of the aboriginal offenders. This bill actually would alter those principles and now includes the phrase “consistent with the harm done to victims or to the community”, which would change the aboriginal sentencing provisions that were existent in the Criminal Code.

I would be most interested in the comments from my colleague as to the impact on aboriginal justice of clause 24 of this legislation.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, that is obviously a very relevant question and I thank the hon. member for it. Obviously, this bill is not yet proclaimed. It is not in force, and jurisprudence will come forth to interpret the bill. Of course, the importance of the Gladue principles will have to be recognized. Certainly they will be made the intent of the bill, as the legislator has intended, while respecting the rights of aboriginals and their communities.

[Bob Dechert, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am very excited about this legislation. Victims have been asking about it for years.

I am really pleased that my colleague pointed out the restitution provisions in the bill, because we need to recognize the enormous cost of crime upon victims in Canada. My colleague also mentioned the victims surcharge and other issues. I wonder if he could tell us how the bill would be implemented and what funding might be available for its implementation.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, there are many other means of funding the provisions of this legislation other than the funding that has been allocated through the federal government. There is the victim surcharge, which has been doubled and now has become mandatory. There has been some debate as to the length of time to pay that, which would be clarified through the proposed bill. We recognize that there is a cost to giving victims a greater voice and greater participation in the justice system.

As my learned friend has said, it is long overdue that the bill is put in place, and the costs are warranted and will be dealt with efficiently by the government.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Speaker, all of us are taking the bill very seriously.

One of the concerns I have with Bill C-32 is that it would create a certain expectation, but there is no legal obligation with respect to the bill within the judicial system. That leaves me questioning whether that would raise the expectations of victims when we have not really resolved it.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I do not know if it would be raising their expectations, but this legislation is premised on four main tenets. One is notification, notifying the victims of what is going on through the process. They are participating through it; they are made aware of the proceedings and counselled to go through it. Nothing can be worse than the fear of the unknown and not being guided through it.

There is also the aspect of protecting people who are scared when they are witnesses or when offenders are released. That is paramount. That is after the trial.

Then there is compensation, which is dealt with in the restitution aspects of the bill.

Expectations are high. The provisions are long overdue. The bill would certainly bring some balance to the justice system in favour of the victims, not at the detriment of the offenders, but they will have their just place and voice within the system.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I want to assure the House that I am very much interested in the bill on victims' rights, but I am a little concerned about the emphasis on restitution, because the government at times slips over into an emphasis on the offender rather than the victim. People have to be lucky to be offended against by someone who has enough resources for restitution to do them any good.

I wonder whether in committee we will be talking about efforts to make sure compensation is available to all victims with some kind of federal-provincial deal on victims' criminal injury compensation funds, which do not exist in Newfoundland or in the territories and are under severe caps in most of the provinces. If people are not lucky enough, in that odd sense, to have an offender who has resources, sometimes there is no compensation available through restitution. I hope we will be discussing this at committee.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, when a person is a victim, the only luck we can talk about is the bad luck, quite frankly, of being in the wrong place at the wrong time.

Nine of the ten provinces have a victims compensation fund, and the sums are certainly modest. It is not the average perpetrator who has all kinds of resources to compensate the victim. Obviously, efforts are going to be made to analyze, in situations where they can, that it would be appropriate. There are the victims programs where there is the surcharge where it comes into funding.

It is far from a perfect system, but I think we would all agree that it is a step in the right direction. More negotiation with the provinces and territories is going to be required, and the good collaboration of all members of Parliament would be helpful as well.

[Joy Smith, Conservative, Kildonan—St. Paul, MB]

Mr. Speaker, I was impressed with the fact that, for the first time, victims would be recognized as victims, and instead of having to bear the burden of being victimized, they would also have the opportunity to understand the process as they go through the trial and also restitution.

Would the parliamentary secretary talk a bit about why this particular legislation is so necessary and why it has been brought forward at this point in time in Canadian history?