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.

The House proceeded to the consideration of Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts, as reported (with amendments) from the committee.

Speaker's Ruling

[The Acting Speaker, Barry Devolin]

There are four motions in amendment standing on the notice paper for the report stage of Bill C-32. Motions Nos. 1 to 4 will be grouped for debate and voted upon according to the voting pattern available at the table.

Motions in Amendment

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

(seconded by the member for Bas-Richelieu—Nicolet—Bécancour) moved:

Motion No. 1

That Bill C-32 be amended by deleting Clause 17.

Motion No. 3

That Bill C-32 be amended by deleting Clause 23.

Motion No. 4

That Bill C-32 be amended by deleting Clause 30.

He said: Mr. Speaker, I rise to present deletions to Bill C-32, the Canadian victims bill of rights.

I and the Green Party support, in general, this important piece of legislation, but with some hesitations about its weaker parts.

Given the damage that the current government has done to the criminal justice system, I am surprised to be saying that. I believe that the victims bill of rights could be a positive step toward alleviating some of the frustrations and emotional pain that victims face participating in the justice process today.

However, the bill is still an imperfect document. I hope that we will improve it in years to come. We were disappointed that, in committee, our worthy amendments were dismissed.

Recent research points to a worrying trend. Canadians, especially victims of crime, have lost confidence in our justice system. A recent report by our own Department of Justice on survivors of sexual violence found that:

While 53% of participants stated that they were not confident in the police, two-thirds stated that they were not confident in the court process and in the criminal justice system in general.

It is no surprise that victims often do not report crimes. As so many victims groups have shared with us, going through the justice process can be confusing, emotionally draining, frightening and demoralizing.

The bill seeks to address some of the concerns of victims, those being greater rights to information, restitution, and protection. However, in the bill, these are more accurately called promises than rights.

I do not believe the bill would deliver what the Prime Minister said it would, that now “Victims will have enforceable rights in Canada’s criminal justice system”.

As many witnesses pointed out to the justice committee, the bill would not really set out rights because there are no substantial redress for violations. Victims are entitled to file a complaint if they feel their rights have been violated and a complaint is better than nothing, but it is not redress.

If this promise is followed by good faith and funding, we will have succeeded in improving the experience of victims in the justice system; if not, we will have made matters worse by promising but not delivering.

Though I support the bill on balance, I have concerns about some of the provisions. As Ms. Sullivan wrote, it is not necessary that we all agree on every aspect of the bill, and:

...what is important is the marking of a cultural shift to more fully consider and integrate victims’ in Canada’s criminal justice system and, jointly, the opportunity for important discourse about victims’ needs and how to better address them.

Since many of the concerns of victims were not addressed in the bill, I hope that Bill C-32 is only the start of the conversation on this important issue.

Three sections, in particular, worry me. I am most concerned about, first, restitution; second, redefining the purpose of sentencing; and third, non-disclosure of witness identities.

I have some concerns with clause 30 that would require that the court consider making a restitution order against the offender, regardless of the offender's ability to pay. This could cause issues both for the victims and the offenders. Restitution, as we have heard from many victims groups, can be an extremely important part of the healing process. It can also be an important step for offenders taking responsibility for their actions.

However, I am concerned, and witnesses were concerned, by the way these provisions are worded. As Catherine Latimer, executive director of the John Howard Society, has warned, these orders for restitution could have a disproportionate effect on those offenders who, far too often, are:

...poor, marginalized, battling mental health and addictions and without the lawful means to provide financial compensation to others.

These orders could also open up the issue of fairness in the justice system.

At the same time, legal experts argue that the wording of 739.2, that requires the judge to specify a day by which the full amount is to be paid, would undermine the good that this system does for victims.

According to the Canadian Bar Association, “Including a deadline for payment could create adverse consequences for victims”.

The victim would not be able to go to court to enforce their order until the final date has lapsed, which could be many years away. According to the Bar Association, “[It] may have the adverse effect of providing victims with false hope of financial recovery”.

The worst thing that could happen is that victims be given the expectation of funds that they will never receive, and at the same time, burdening impoverished offenders with long-term debts that will prevent their rehabilitation.

I am concerned that these provisions will receive the same fate as the victim surcharges that judges have simply been refusing to order and this will leave victims unsupported.

Bill C-32 also seeks to redefine the purposes of sentencing in the Criminal Code. To echo the concerns of the Bar Association:

The cumulative impact of these proposed amendments, with the increased use of mandatory minimum penalties and the elimination of conditional sentence orders for many non-violent offenders, risks adding to Canada’s over-reliance on incarceration.

I do not see how these changes will have positive benefits for victims and may have the negative effect of prioritizing harm done over the other purposes of sentencing. Sentencing is a delicate balance, and there is no evidence to suggest that the balance in the code is presently broken.

Perhaps the most egregious element in this bill is clause 17. That would allow a judge to “make an order directing that any information that could identify the witness not be disclosed in the course of proceedings”.

As every legal expert who testified before the committee noted, this is an unprecedented and almost certainly unconstitutional breach of the right to a fair trial. As Howard Krongold of the Criminal Lawyers' Association testified at committee:

But it's hard to imagine a more fundamental change to Canadian law, one less consistent with Canadians' visions of open, fair justice, where everybody has a chance to a fair trial, where they can make full answer and defence and confront the witnesses against them.

Eric Gottardi of CBA added:

Clause 17 contemplates at least the possibility that the accused and counsel for the accused and the crown might have to cross-examine or direct examine a witness when they have no idea who the witness is. I haven't found a single case that talks about that, and I can't imagine a scenario, short of life and death and someone essentially amounting to a confidential informer, where that kind of process would pass constitutional muster.

Under extreme circumstances, judges already can use their discretion to limit the disclosure of witness identity through the use of pseudonyms, publication bans, and other measures. These are exceptions to the open court principle and they are used sparingly by judges. I would like to repeat the concerns of so many legal experts that what this clause anticipates is a clear violation of the open court principle. This is very worrying.

Every party in this House supports Bill C-32 in principle. It seems, though, that the Conservatives just could not help themselves. They had to insert something blatantly unconstitutional into a bill that everyone supports in principle.

All in all, the bill is a reasonable step toward addressing the difficult position that victims hold in the justice system. It needs to be strengthened and improved, and it will take work. As I said earlier, the bill constitutes more of a promise than it does a bill of rights. Let's make sure we keep that promise.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I would like to thank my colleague for his speech on the amendments.

The member indicated that Bill C-32 is a step in the right direction but that it does not do enough for victims. However, rather than talking about victims, he spent 10 minutes talking about other issues such as sentencing, the consequences of disclosing the name of a witness and restitution.

I am trying to understand. Are we trying to strengthen the victims bill of rights or amend certain principles of criminal law? If I understood correctly, the member seemed to say at the beginning of his speech that the bill of rights is rather limited. However, if I understood the amendment correctly, the member wants to scale back the victims bill of rights.

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

Mr. Speaker, the bill has good intent and it has some good parts, but we are asking for deletions because there are some parts of the bill that are flawed, particularly in terms of sentencing.

I would like to read the portion of the Criminal Code, section 718, which is redundant in the bill and muddies the waters a bit by reiterating some of the objectives. It reads:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I thank my colleague for Thunder Bay—Superior North for his speech. It was a very insightful analysis into some of the major flaws of the bill.

All of the flaws that the member pointed out were identified and flagged, as he said, by the Canadian Bar Association, whose representative testified at committee. They were also the subject of amendments that were proposed at committee and rejected.

In fact, the Canadian Bar Association submitted an extensive brief with several recommendations. Every single one of those recommendations was proposed in amendment form and every single one was rejected by the Conservative majority on the committee.

However, my question has to do with resources. It is all well and good to have a lengthy preamble and statements about how we are going to improve the lot of victims and all of these declarations, but unless there are adequate resources to fund programs, and unless there are adequate resources to give the victims the right to information and to complain, contained in the bill, then it is really not worth the paper it is printed on.

I would like to get the hon. member's views on what more should be done, other than what is in the bill, to give the victims the standing in the justice system that they so dearly want.

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

Mr. Speaker, as I mentioned in my speech, the Prime Minister effectively made a political statement promising that the bill would really help in terms of victims' rights. However, as I have commented repeatedly in my speech, it does not really do that as strongly as it might.

The hon. member for Charlottetown talked about the purpose and intent of the bill and if we would have the resources there for that. The bill is visionary. It does point us in a strengthened direction with good ways in how to strengthen victims' rights. However, we come to Hyer's law, and Hyer's law of vision is that vision without funding is hallucination.

[The Acting Speaker, Barry Devolin]

It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Thunder Bay—Superior North, Seniors; and the hon. member for Acadie—Bathurst, Official Languages.

Resuming debate. The hon. Parliamentary Secretary to the Minister of Justice.

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

Mr. Speaker, I am pleased to rise once again to speak to a subject that we have been studying in committee for quite some time. This government's bills are all about protecting victims. Bill C-32 is the result of consultations with 185 groups from across the country as well as 300 online submissions.

One thing that the government heard frequently is that victims face many injustices when they interact with the justice system. I would like to give an example of what Bill C-32 is going to do to help victims and witnesses deal with the difficulties they experience in the courtroom.

Ms. Timea Nagy, founder of Walk With Me Canada Victim Services, shared with us something that happens quite often in trials involving organized crime.

Let me tell members a bit about what this organization is doing in the community.

Established by a survivor of human trafficking, Walk With Me was created with a commitment to ensure that survivors have a place in providing first response care to victims of human trafficking and to recognizing that survivors should have a voice in developing a coordinated community response that can meet immediate crises and longer-term needs of trafficked victims. Since its inception in 2009, Walk With Me has been working closely with various police services across Canada and has been able to provide unique services and support to many victims of human trafficking in Ontario and all across Canada.

You can already imagine the immense courage that Ms. Nagy and the people she helps must have.

During the committee study, Ms. Nagy shared a story with us. When she testified in court in a human trafficking case—she was both witness and victim—the accused's brother was in court and motioned to her that he would slit her throat.

It is understandable that this type of behaviour intimidates victims and witnesses. In many cases, the victims or witnesses are too scared to testify because they are afraid of reprisals. The crown attorneys cannot use their testimony to send dangerous criminals, members of organized crime, to jail.

Bill C-32 will allow witnesses to testify without seeing those present. The purpose of this measure is to reduce intimidation in order not to revictimize the victim. The bill will also improve the justice system by providing crown attorneys with additional tools to collect more solid evidence against criminals during their trial. We hope that this will reduce the number of criminals who avoid serving jail time because they manage to intimidate key witnesses.

Revictimization is an issue that came up a number of times. Victims felt it was important for Bill C-32 not to create additional delays. A procedural delay prevents victims from moving forward in their healing process.

As Alain Fortier, the president of Victimes d'agressions sexuelles au masculin, explained, victims are forced to remember the details of terrible, traumatic events. They have to constantly relive the negative experience and describe it in court. Victims want to be able to heal. The longer the process is, the greater the consequences for the victim. That is why it would be bad for Bill C-32 to create additional delays in a process that is already too painful.

Another interesting point I want to talk about is spouses being uncompellable. In short, this means that witnesses cannot be required to disclose something their spouse told them. This frequently comes up in cases of drunk driving, where the only witness is often the driver's spouse.

Lise Lebel, the president of the Fondation Katherine Beaulieu, a Quebec organization that does similar work to that of Mothers Against Drunk Driving, told the committee:

Our organization agrees with the amendments proposed in Bill [C-32], which obliges spouses to testify in all cases. These amendments reflect a systematic trend towards providing crown prosecutors with access to all relevant evidence.

Once again, it is important to give crown prosecutors all the tools they need. Our justice system needs to re-earn the public's trust, and this is another good example of how we can achieve that.

A number of victims' groups told us that the victims bill of rights was a step in the right direction. I want to name a few of the groups that testified in committee.

They include MADD; Robert Hooper, lawyer and victims' rights advocate; Steve Sullivan, former federal ombudsman for victims of crime; Boost Child Abuse Prevention & Intervention; Comité des orphelins victimes d'abus; Timea Nagy, founder of Walk With Me Canada Victim Services; the Canadian Association of Chiefs of Police; Kristen French Child Advocacy Centre Niagara; London Abused Women's Centre; Victimes d'agressions sexuelles au masculin; La fondation Katherine Beaulieu; Sue O'Sullivan, Federal Ombudsman for Victims of Crime; Sheldon Kennedy Child Advocacy Centre; the Alberta minister of justice, the Hon. Jonathan Denis; the Canadian Parents of Murdered Children and Survivors of Homicide Victims Inc.; the Canadian Bar Association; the Canadian Centre for Child Protection; the Canadian Resource Centre for Victims of Crime; the Canadian Crime Victim Foundation; the Canadian Association of Crown Counsel; the Canadian Coalition against Terror; the Canadian Centre for Abuse Awareness; the great Sharon Rosenfeldt, pioneer in victim services in Canada and founder of the Victims of Violence Canadian Centre for Missing Children; and l'Association des familles de personnes assassinées ou disparues. We can even add, albeit to a lesser extent, the Criminal Lawyers' Association.

Some aboriginal groups also came to express their opinion on the bill and to talk about the challenges that their communities faced. They all, in the end, support this bill.

I thank the office of the Nation nishnawbe-aski, NWAC, and the Pauktuutit Inuit women's association for their precious contribution to the work of the justice committee.

Bill C-32 has near-unanimous support. I want to quote my hon. colleague from Gatineau, the NDP's justice critic.

She said:

I think everybody agrees that Bill C-32 is a good step. It's a step in a good direction. It has good at the heart of it.

In conclusion, I want to say that Bill C-32 had the unanimous support of all parties represented on the Standing Committee on Justice and Human Rights.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I thank my colleague for quoting me.

Having said that, I still do not understand why Conservative members of the committee objected to a request from the official opposition that mirrored a request made by two justice ministers, neither of whom was on my colleague's list of witnesses who appeared.

The committee did hear from two justice ministers, the attorneys general of their provinces, Alberta's justice minister and Saskatchewan's justice minister, if I am not mistaken. Both called for an adjustment period given that, as Mr. Murie of MADD Canada said, 90% of the new charter falls under provincial jurisdiction. The two attorneys general of those provinces, and others I talked to, felt that three months to implement the bill following its enactment was not enough. They asked for six months, but their request was turned down. That seems like a very logical request to me, so I would like the parliamentary secretary to explain why it was refused yet again.

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

Mr. Speaker, I thank my colleague for her excellent question.

Representatives of two of the ten provinces appeared before the committee. All of the provinces and territories were invited. Two provinces seemed to want a longer deadline for implementation. However, even though all of the provinces and territories were invited to appear or to send written submissions, only two provinces sent representatives. Why would we extend the deadline when only two of the 13 provinces and territories asked for that? The victims have waited years for a law that would consider their needs. Sharon Rosenfeldt is a pioneer who has been waiting for this law for 33 years. She contributed a lot to developing this law.

Basically, victims have been waiting for a long time, and it is time we acted to protect their interests.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I would like to ask the parliamentary secretary about the testimony of another witness at committee, a person by the name of Maureen Basnicki. She described herself as a very reluctant member of the victims of crime club. Her husband was killed in the 9/11 attacks in the United States.

The definition of “victim” contained in the act excluded her. Why did the government exclude this group of victims, and, once it was pointed out, why did it not fix it?

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

Mr. Speaker, the incidents that led to the death of this witness's husband are truly regrettable, but one can easily understand that laws that have extraterritorial provisions are often the subject matter of international conventions. Certainly it was not within the scope or the ambit of the act to act in such a fashion to give, I guess, credence to this victim's request.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, I would simply like to ask my colleague if he is aware of whether or not the government gave consideration to something that came to my attention when we were dealing with the bill. It was in an earlier private member's bill and was about adding penalties to perpetrators of crimes to help pay for victims.

The restitutional and compensation provisions that allow for claims to be brought in this bill are one thing, but that fact of the matter is that the needs of victims and their families for support at the level of trauma and grief are huge in this country. We are faced with a patchwork quilt and not across-the-board federal involvement.

I wonder if my colleague across the way can tell us whether any consideration was given to enhancing the role of the federal government in supporting groups on the ground that are helping people struggling with grief and trauma.

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

Mr. Speaker, I am not certain if the exact topics that the learned member is talking about were brought to my attention.

What I can say is that obviously part of the web of services that would come to victims are not only out of the victims bill of rights but also from victims' groups that are financed, in some instances, by the federal government.

Members will recollect that we did do the victims' surcharge act. Of course, the funds that come from the victims' surcharge go directly to victims' services and in some instances to groups that try to deal with grief. Certainly there is more work to be done with regard to grief and helping victims through the trauma, and that is at the very heart and essence of what this act attempts to accomplish.