Justice Committee on June 12th, 2013

[Hoang Mai, NDP, Brossard—La Prairie, QC]

Ms. Illingworth, I want to ask you the same question I asked Ms. Russell. In terms of information respective to the accused, what else do you think we should do in terms of helping victims? First of all, do you agree it's important to know the residence of the accused, especially if the victim asks for it?

[Heidi Illingworth]

Yes, absolutely. It's really critical information for a lot of people who want to have an assurance of where the person is or the vicinity. Sometimes you might just know they're in a city like Ottawa, for example, or they're allowed to travel into a city on a pass or for a certain escorted period, something like that.

One of the problems now within this system is that victims aren't notified each time a person has been given privileges from the hospital. For example, I was at a review board hearing yesterday In Brockville. We learned in that hearing that the person is in a community basically every day working at a local agency, and also that the hospital has given him privileges to travel to visit family members in a certain cottage region outside of Ottawa. The victim will not be notified each time he travels on a pass like that to visit family members.

That's concerning when you don't know where you might bump into someone, especially someone who's caused such serious harm to you or your loved ones.

[Hoang Mai, NDP, Brossard—La Prairie, QC]

We've heard that a lot from the victims who came to this committee also. Something that's not necessarily in this bill in terms of helping the victims more.... We talk about funds, but what else do you think would be required in general?

[Heidi Illingworth]

In terms of NCR-accused, right now it can be very difficult for family members to actually attend hearings on an annual basis because there is no travel fund, as there is for federal parole hearings. If you're a family member who lives in Ontario but an accused person was found NCR in Alberta and the hearing is being held in the hospital out there, you would have to travel on an annual basis and cover those costs to be present at the hearing.

There are issues like that. People want to be heard. They want to have their security concerns heard, especially. A lot of times right now it's a feeling that you get to present an impact statement but it's not really taken into consideration by board members, and that they have a plan, which is to reintegrate the person as quickly as possible, whether that is the best thing for public safety or not.

A lot of family members have concerns about that. It's not always a quick reintegration process. Just because they've been stabilized in a hospital, doesn't guarantee they will be compliant with their medication out in the community.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Our next questioner is Mr. Calkins from the Conservative Party.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair. Thank you to our witnesses for coming today.

My first question is for you, Ms. Russell, and it's in regard to your testimony. You caught my ear when you said that your victim impact statement was actually vetted, edited and changed before you were able to present it.

Could you enlighten this committee on how that happened and why it happened? Were you told why it happened? Who did it? Who edited that?

Can you also explain any further to this committee why this bill is so important insofar as providing victims more of a role in this process?

[Christine Russell]

Absolutely.

If you're going up there, you wholeheartedly think that you can say your piece, say how this has impacted you. That is absolutely not the case, and it is just disgusting.

What happens is that you're supposed to prepare your victim impact statement ahead of time. There is a process wherein the review board gets it 14 days ahead of time, or as close to that as possible before a hearing. Counsel for the accused can review it. They can vet it. Your crown can vet it. If there's something in there that they don't like, such as the word “murderer” or “killed”, or anything that they think goes beyond the scope of the purpose, they can cut and paste, and edit or chop up all your personal information—all the things you really wanted to say from your heart.

It's so offensive. Not only was my statement cut, but so were my mom's, my dad's, and my father-in-law's. Even the one from the member of the police service who worked with Ryan was edited. It just goes to show you that even though you think you have a right as a victim, you really don't. You're playing a game. It's terrible.

Thank you.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

That's very important for us to know. Thank you for answering that.

Mr. McCormack, I'm assuming that as a law enforcement officer you've had opportunities to go to trial and be present in courts. Opponents of this legislation are attempting to make a case that defence lawyers will opt not to go the “not criminally responsible” route in order to get a different sentence, to avoid stigmatization and so on, citing that the three years is written in stone, when it actually isn't. It's up to three years.

From your years of service, or from discussions you've had with your numerous colleagues, do you think that argument actually holds water, that a defence lawyer would actually opt for the stigmatization of murder for their client rather than not criminally responsible?

[Mike McCormack]

First of all, it's not only with my colleagues; in my role as the association president, I deal with many others. We have counsel on staff, and I deal with many counsel criminal lawyers. We've had lengthy discussions on NCR and what it means, and the interpretation, trying to get some understanding of what that means.

I would only say that I would find it very suspect if a counsel would ever prefer to go the criminal route than an NCR route.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

It doesn't make sense to me either.

[Mike McCormack]

No. I would probably bring a notice to the law society about that counsel. That's how strongly I feel about that.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you. I tend to agree with you. That's been my experience as well, as a former law enforcement officer. Even though I never dealt with an NCR case, that doesn't hold water with what I know.

Ms. Illingworth, my last question is for you. We obviously need to ensure that victims are supported and not revictimized by the system. Do you think the changes we have proposed in Bill C-54 will reduce the revictimization for victims who go through this process? Does it strengthen victims' rights and the victims' ability to have a say and be protected by the legislation after a serious incident like this happens?

[Heidi Illingworth]

Yes, I think it is a definite good first step. I think there are more improvements that we can make. We've lent our support to this as hopefully improving the voice that victims have and ensuring their safety concerns are met. This is a good first step.

Avoiding revictimization altogether will be very difficult in any sort of criminal justice or mental health process, just by its nature. If they want to be there, they will be there and will want to speak to the issues they face. But if we can start looking at justice and these sorts of issues from the perspective that we need to do less harm to victims, that's a very positive thing.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you.

I have a last question, if the chair will permit it. Not only must justice be done but justice must be seen to be done, and I think the improvements we're making right now will do that.

Ms. Russell, you talked about the cynicism of society at large when we see folks like Vince Li, and of course, the fellow here—I'm not familiar with him—Kachkar, out on a day pass or something like that, soon after they've killed somebody. Justice is not seen to be done.

Do you think the changes we're making here will improve the public's perception about justice being seen to be done?

[Christine Russell]

Absolutely I do. I think society in general needs to know that Canadians, and people who are being victimized...that there are rights for them as well, not just for the accused. It seems to always go the way of the accused. It's time that victims and their families and society feel protected and that we take a stand on this. I feel very strongly about that.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

Our next questioner, from the Liberal Party, is Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman. I'll be giving over my time to Ms. May to ask the questions.

[The Chair, Conservative, Mike Wallace]

Okay, Ms. May, the floor is yours. You have five minutes.

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

Thank you, Mr. Chair, and thank you, Mr. Cotler.

First of all, thank you to all the witnesses for being here. Your evidence is very helpful.

Do any of you see anything in Bill C-54 as currently drafted to deal with the circumstance that Christine Russell described in which her victim impact statement was changed?

I don't see anything here in Bill C-54 that would change that process or protect victims from having that occur to their statements.

[Mike McCormack]

Could I answer that?

I think the overarching principle of the bill, in the introduction of the bill, sets forth the premise or the principle that victims' rights and the public's right to public safety should take precedence over any part of this bill or issue. It speaks to that directly, that the victims do have a larger role.

As a mission statement or a statement of facts, that definitely speaks to that.

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

I guess it's my law school background. I look at the bill and I know that the Supreme Court of Canada has already said that the paramount concern is public safety, and still that happened to Christine. So I'm just looking at ways we could improve the bill, based on your evidence, and that seems to me to be a hole.

I wonder if any of you or all of you want to comment on the testimony of Sue O'Sullivan as federal ombudsman for victims' rights. She spelled out a number of things. Frankly, until she listed them—and I look to my colleagues in the Conservative party as well—on reading the bill, I had thought those things were there. But I went back and looked, and she's right. There's nothing in the bill right now that says victims should be advised of the forensic facility location, that victims should be advised in advance of movements, that victims should be given advance information on release. You were here in the room when she testified.

Do you have any comment on whether you would support the amendments that Sue O'Sullivan suggested to improve Bill C-54?

[Christine Russell]

I am just starting to go through this process. I'm in Ontario, and I have been advised, notified by mail, when there are going to be appearances and where this person is, etc. I don't know if that's consistent across this country. I don't believe that it is, so far, and I think it is important to include that kind of information.

[Mike McCormack]

Yes, definitely, and again, I'm reading the excerpts of the bill on ensuring that victims are notified upon request when the accused is discharged, and—this one I think is a very important one—allowing non-communication orders between the accused and the victim, and ensuring that the safety of victims be considered when decisions are being made about an accused person.

I think they are all relevant points.

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

I'll state right now for the chair that I'm concerned. I want to be able to present amendments that would bring forward Sue O'Sullivan's amendments, but I was told the deadline for my amendments was a few days ago. I don't know how I am going to be able to bring them forward, so I'm looking to government members who perhaps can figure out a way to do that.

The last thing I want to ask is kind of hypothetical, because the witnesses who made the point earlier aren't here to help explain their point. I'm referring to Bernd Walter's and Richard Schneider's testimony.

Let me just try this with you, Mr. McCormack. Obviously, if somebody has committed a murder, it's very unlikely that they would throw themselves into the criminal system as opposed to the NCR system, or that a lawyer would advise that. But wouldn't you agree with me that for a lesser crime—not lesser in the sense necessarily of trauma; I'm not diminishing the nature of a crime—for a sexual assault, scary assaults of all kinds, where the sentence in criminal justice might end up being less than three years, and the offender looks at the risk on the NCR system...?

I think that's what I understood the other witnesses to be explaining, that you might end up having a lawyer say that your chances may be better to roll the dice and go into the criminal justice system, and then the offender is released without control, without their medications, and so on.

I wonder if you would see that as being a risk at all?

[Mike McCormack]

Again, I'll go back to my original point. I don't see it as a risk.

In seeing the system and what we're talking about, I don't know too many people who would throw up their hands and say “put me in a federal or provincial institution”, and that it's a great place to be and they're going to get better treatment than they would in a hospital.

Again, quite frankly, counsel has a fiduciary duty where there is a mental health issue to bring it forward, so I think counsel would be in breach of the fiduciary duties to their clients. I can't see that happening.

When you're talking about the stigma of being designated a high-risk offender, well, in Mr. Kachkar's case, for instance, it was undisputed that he murdered Ryan Russell, so what's the difference whether...? Is it, “Well, I don't want to be called a high-risk offender, but I'd rather be called a murderer”...?