Justice Committee on Nov. 5th, 2013

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you, Mr. Chair, and thank you, Mr. Warawa, for being here today.

This is near and dear to my heart, my having investigated many of these crimes over my time as a police officer.

I wanted to touch on the part of the bill that deals with re-victimization. Could you explain what your thinking is with regard to re-victimization and how this bill would answer those things? Then maybe we can go from there.

[Mark Warawa, Conservative, Langley, BC]

It's a very difficult part for me, because I have not walked this path that I hear about when victims share from their heart what it was like after a day of work to go back home to their neighbourhood and see the person who assaulted their child enjoying life, cutting the lawn, seemingly living a life with little consequence of what they had done.

I can't identify because I have not experienced that, but the stories we hear are heart-wrenching. It's the same for the victim. If they inadvertently see the offender, their attacker, they relive it. There are these little triggers; there are words and visual triggers that bring back these memories. It's important that we protect these victims as much as possible and provide an environment for them to heal so they are not re-victimized, because they will be.

The parents will struggle. They will hurt along with their child. Every time the child hurts, the parent will hurt. It's all part of this re-victimization, which is a very sad situation.

[David Wilks, Conservative, Kootenay—Columbia, BC]

When drafting this bill, Mr. Warawa, and the consideration around it on conditional release, it seems to me as though this is one of those offences to which house arrest would not be applicable. There are many that could be, and I can think of some, but sexual assault is not one of them.

Was there consideration when drafting the bill to amend the Criminal Code through section 742 to not allow for house arrest as a condition of release? What I mean by that is when a person is sentenced to less than two years, and the judge determines the person can play out their sentence in the comfort of their home, was there some consideration to not allow that to occur?

[Mark Warawa, Conservative, Langley, BC]

Yes, and the scenario you share is probably a very likely scenario. Two years less a day will be managed by the provinces. It's not federal time. For provincial governments there's consideration for the cost of incarceration and administration. The easiest way is to allow the offender to serve their sentence at home under the condition that they do not contact their victim, that they don't see them, don't phone them, don't e-mail them, that they have no contact with them. Maybe this is the reason this happened.

To have house arrest and to permit this re-victimization hasn't, I don't think, in the past been seriously considered, maybe not considered at all. The major change in Bill C-489 is that they would now be required to. Whether it's the federal parole board, the Parole Board of Canada.... If it's two years or more, it's federal; if it's two years less a day, then it's provincial, as you know. All administrative bodies would be guided by this change. It would be in the Criminal Code of Canada. They would have to consider the impacts of the sentencing on the victim and the victim's family.

[The Chair, Conservative, Mike Wallace]

You have one minute, Mr. Wilks.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you, Mr. Chair.

Again, I think the important part of your bill and any bill that comes to this committee when it comes to victims is that we focus on the victim first. I think for some time we've tended to be more concerned about how we are going to rehabilitate the offender. Although that is an important part of the system, the more important part is how to ensure the victims move forward in life.

I come back to house arrest. I'm somewhat concerned because from the perspective of helping the offender get the help that he or she may need, if they need it, seems to be lacking.

Could I have a short response?

[Mark Warawa, Conservative, Langley, BC]

Yes, I would agree that the focus has to be on the victim. The example I used earlier was that the offender has counsel to consider the offender's rights, well-being, and appropriate sentencing. The offender has counsel, but the victim and the victim's family have no counsel. They are seen as observers in the system, and they now need to be considered. They would be part of the system and their healing would have an opportunity to happen. Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you for that question and answer.

From the New Democratic Party, Monsieur Jacob.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you, Mr. Chair.

I thank Mr. Warawa for being here to answer our questions.

My first question has to do with section 5 of the bill, which imposes mandatory conditions—for instance not communicating with a victim, and refraining from going to a specific location—on offenders who have been convicted and are serving their sentence. Will the bill be retroactive?

[Mark Warawa, Conservative, Langley, BC]

No. If this becomes law, it would apply to offences that occur after this becomes law, so it would not be retroactive.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Do the new obligatory conditions add a punishment in the sense of clause 11(h) of the Canadian Charter of Rights and Freedoms, which forbids punishing an offender again, i.e. “(h) if finally found guilty and punished for the offence, not to be tried and punished for it again”?

[Mark Warawa, Conservative, Langley, BC]

Thank you for the question.

I believe this is within the charter. The importance of allowing the courts to consider each situation and the sentencing to be on the merits of that situation would be maintained. The courts have the discretion to make the ultimate decision of appropriate sentencing. The change with Bill C-489 is that the courts would have to consider the impact on the victims because, at this point, they're not required to. That's the major change. After the courts have made those sentences, those administrative bodies would have to again consider the impact on the victims.

I think your question was whether it would withstand a charter challenge. Every piece of legislation, particularly within the justice committee, has to be looked at through that lens. This has been looked at by the experts, and I believe it's very much in line with the charter and would withstand a charter challenge if necessary.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

If I understand correctly, adding new obligatory conditions does, according to you, constitute a punishment as defined in paragraph 11(h) of the Canadian charter.

I have a question on the scope of Bill C-489. Does it also apply to young offenders?

[Mark Warawa, Conservative, Langley, BC]

Yes, it does apply to young offenders. Maybe I could clarify. What is mandatory would be that the courts consider. One of the amendments I've seen proposed in consulting with you members is that the clause that requires a two-kilometre bubble zone around the victim be amended to two kilometres or what is deemed appropriate by the courts. We have to have that amendment, and I'm very supportive of it, because again, the courts have to have that discretion.

That is what is mandatory, not the two kilometres, but what the courts deem to be appropriate, and that they consider it.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

I have a final question for you. You referred to the fact that judges have discretionary power, and I am glad about that. However, what did you have in mind when you talked about exceptional circumstances in reference to the condition that offenders are forbidden to communicate with victims? Can you provide concrete examples of exceptional circumstances to the committee?

[Mark Warawa, Conservative, Langley, BC]

That again would be a key word for the discretion of the courts, if the courts deemed that house arrest was appropriate in that situation.

You're asking for a hypothetical example. If the offender was a young person who did something very stupid and there was a great degree of remorse, if the offender was actually a minor and their guardian was taking full responsibility, if it was realized why the offence took place—maybe it's access to the Internet—and if there was an agreement with the victim's family and the offender's guardian to manage this appropriately, then in that case maybe house arrest would be an appropriate sentence. Again, it's up to the courts. They have total discretion. On “exceptional circumstances”, they would have the opportunity to say what circumstances are exceptional.

[The Chair, Conservative, Mike Wallace]

Okay.

Thank you very much.

Thank you for those questions and answers.

Our final questioner for this witness is Mr. Seeback from the Conservative Party.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

Mark, this is a great bill. One of the things we often talk about at this committee is that it's not only that justice is done, but it's the perception that justice is done. When you've spoken to victims who have gone through this, and certainly for the person who comes home and sees the offender across the street cutting the lawn, do those people feel that justice has been done in the circumstances?

[Mark Warawa, Conservative, Langley, BC]

A resounding no.

[Kyle Seeback, Conservative, Brampton West, ON]

I think that's important. We forget sometimes when we're here as parliamentarians that people lose faith in the justice system when they see this, and that is a bad thing for any society, so I think this is going to help.

One of the things Mr. Easter was talking about is how victims would know that this has been considered. I suspect your answer to that would be quite clearly that, number one, a crown attorney would make the submission that these things should happen. I know from my experience with the justice system that victims go to all these hearings, so the crown attorney will make the submission that one of these prohibitions should be in place. If the judge doesn't do it, they have to give written reasons as to why they are not doing it.

To me, that's quite clearly how the victim would know. Would you agree with that?

[Mark Warawa, Conservative, Langley, BC]

I would.

It's often not the victim but the victim's parent or guardian who would be at those court hearings to hear what the courts are doing as the defence and the prosecution are presenting their cases to the judge and talking to the judge, and then the court's discretion and consideration.... They have to be involved with this.

Now, with these changes, I think they would actually be consulted, as opposed to just being there as observers and hoping to be there at the right time. These considerations, the cases, and the dealing with the courts in these situations are not done all in one day at a specified time. It could be months, and repeated and repeated over time, so it's very stressful for the families and the parents of the victims.

[Kyle Seeback, Conservative, Brampton West, ON]

I don't know if you can answer my question, but when I look at the amendments you're putting in for subsection 161(1), the order of prohibition, one thing I notice is that you have not included what you have included elsewhere, which is that if the courts decide not to impose these sanctions, they would give written reasons.

Do you have an explanation as to why that's not there in section 161, which is the two kilometre prohibition? Would you consider an amendment to add that?

[Mark Warawa, Conservative, Langley, BC]

Yes.

Colleagues, if you believe there are amendments needed to strengthen the bill or to provide clarity to the bill, I welcome them. I think we're all on the same page in that we want to protect the rights of victims and give a clear requirement that the courts consider the rights of the victims. If any amendments need to be made to strengthen the bill, I welcome them.

[Kyle Seeback, Conservative, Brampton West, ON]

That's great. Thanks very much.

[The Chair, Conservative, Mike Wallace]

Mr. Easter, on a point of order.