Justice Committee on Nov. 5th, 2013

[Mark Warawa, Conservative, Langley, BC]

No.

[Wayne Easter, Liberal, Malpeque, PE]

You don't have those figures. I'll lay it out. I have problems with the exaggeration by government and by members of your party on how they perceive these bills are going to do so much for public safety. That's why I asked the question and asked about the numbers. We don't know.

Yes, there are thousands of people. Mr. Dechert's case and your case involving the two incidents are terrible cases; there's no question about it. We want to prevent re-victimization and reassure people that they will not be re-victimized and that families are not living in fear, but to say this bill is going to have an impact on the public safety of thousands of people when there may be only ten I think is exaggerating.

We agree with the intent of it. I just want to make that point. In terms of court decisions at the moment, these restrictions can already be imposed by a judge. Is that correct?

[Mark Warawa, Conservative, Langley, BC]

That is correct. They are not required to consider them. They could be imposed.

[Wayne Easter, Liberal, Malpeque, PE]

The impact of this bill would be that a judge would have to consider them. What would be the process for accommodating that? How would we know that a judge has taken this into consideration in his or her final decision? What would be the process for doing that, other than telling them they have to do it? How would the victim know there has been that consideration?

[Mark Warawa, Conservative, Langley, BC]

Thank you for the question. The Criminal Code of Canada would be amended. It would apply to every jurisdiction across Canada, and sentencing judges would be required to consider this. At this point they're not required to consider the impact on the victim.

The initial thought with the bill was that this bubble zone would be required, but that would remove the discretion of the courts. That would be one extreme. At this point they're not required to consider the victim. That's what exists now, which is, I believe, one extreme of the paradigm. Requiring the courts to do this would be the other extreme. I think the balance in the middle would be that courts and the administrative bodies after the courts would all be required to consider the impact on the victim. Right now the victims do not have to be considered.

[Wayne Easter, Liberal, Malpeque, PE]

Let me come back to the smaller community scenario, because there may not be that distance if the offender's primary residence is closer. Actually I don't have a problem if the offender's primary residence is within half a kilometre of the victim's residence. I don't have a problem if they can't live there anymore. They committed the offence, so if they have to move somewhere else, that's too damned bad. I don't have a problem with that, so I think we ought to be careful with proposed item 732.1(2)(a.1)(i), because you'd basically be asking for the victim's or the victim's family's consent if it's within a closer range. I think we ought to be careful there, because if you're in a small community, a community like mine, you'd have difficulty getting two kilometres away. However, if the offences occurred, and one of the conditions was a distance of two kilometres, then I don't see why if it's a small community you would give the offender that option. It's too bad he committed the offence, but now he'll have to move somewhere else, and that's his problem. We don't want to re-victimize the victim.

Where are you on that?

[The Chair, Conservative, Mike Wallace]

Please make it a very quick answer, Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

I think the bill reaches that balance where it would require the courts to consider that. If the offender has circumstances....

In one of the rulings, the courts ruled that it would allow the offender to be less of a risk if they were able to serve their sentence at home with their family as their support group. That's why house arrest was given in that circumstance in Langley.

Your suggestion is that the offender should have to move when we consider the impact on the victim, and I would agree. The offender could have had their family relocate with them during that warrant period away from the victim. Why should the victim have to move? Why would you destroy the neighbourhood of a victim and a family in favour of the offender?

I would agree that we need to consider the victims, not the offenders.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner is Monsieur Goguen from the Conservative Party.

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

Thank you, Mr. Chair.

Thank you very much for bringing forth this important piece of legislation. Obviously, this plays right into our theme of wanting to give the victims a voice and basically balancing the interests of victims versus those of the offenders.

I'm very pleased to hear that the Liberal Party agrees with the intent of the bill, but this is not a statistical exercise. Frankly, isn't it enough if one person is victimized? Ask yourself, what if that one person happened to be your child? Enough said.

You've obviously put an awful lot of study into this issue. I'm wondering if you could share with us what your study has revealed. What are the types of damages that are caused, whether they be psychological, physical, or even monetary, by incidents like those you're trying to cure?

[Mark Warawa, Conservative, Langley, BC]

As I highlighted, the healing process can be a lifelong issue for a victim and a victim's family. If it requires moving, there is huge expense involved. That family may or may not be able to afford the cost of relocating their whole family, but for a family to survive, you cannot ask them to stay in a situation where they are being reoffended day after day after day. They have to feel safe. They have to have an opportunity to heal.

There potentially could be huge costs financially for a family. If the courts were required to consider that, I believe it would make our society much safer. It's very difficult to calculate what those costs would be, but if you give victims an opportunity to heal, then the cost to our medical system.... Allowing the person to heal and to become a productive citizen in Canada I think is in everyone's interest.

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

To take up Mr. Easter's point, I think he's correct. I mean, if you're in a small community and somebody has to move, it should be the offender, obviously, who bears that burden. To paraphrase his words, tough luck; that would be the prospect.

[Mark Warawa, Conservative, Langley, BC]

Yes, I would agree.

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

Obviously, to balance the interests of the victim and the accused, the court retains a certain jurisdiction in imposing conditions, as of course the parole board does. Could you reiterate how you feel that, despite this discretion, the victims would have a voice? How would it initially make them feel safe in their communities? How would it help? Where would they have input? Could you highlight that for us?

[Mark Warawa, Conservative, Langley, BC]

At this point in our justice system, the offender would have a lawyer, a legal counsel appointed to them, to defend them through the process. What about the victim? We have a defence lawyer appointed to protect the rights of the offender. We have a prosecuting lawyer, and we have the court system to make the judgment. What about the victim? Does the victim have any opportunity for counsel, for input? No, they don't.

With this new structure, Bill C-489 would require that the courts and the administrative bodies consider the victim. What would happen administratively is that they would be required to consider this. I think it would work itself out that they would contact the victim to say what it is they're considering and would the victim be okay with that. The victim, or the guardian or parent, if the victim is a minor, would then give their consent as to whether they could live with that.

There could be a sentencing and administrative process that works for everyone, but the consideration of the safety and well-being of the victim has to be paramount. I believe it's a good balance.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner is Madame Péclet from the New Democratic Party.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you very much, Mr. Chair.

Thank you very much, Mr. Warawa, for answering our questions.

My first question has to do with the first provision, which is at the core of the bill. It states that the offender may not be within two kilometres of a dwelling where the victim is present. You know this bill, it is your bill. You wrote the following words “where the offender knows or ought to know”. I don't know if you consulted the House of Commons legislative drafters, or if you consulted organizations. What would be the scope of the words “knows or ought to know”? Who will determine how the person ought to know this? Will the court provide him with the information? Will it be his responsibility? Should he know this? If so, how will the Crown or the court determine that he ought to have known this, what criteria will they use? Would it, for instance, have to satisfy the criterion of ''reasonable grounds to believe'', or would it be the criterion of ''beyond any reasonable doubt''? How should this obligation to know be interpreted by lawyers, judges, and here, by members of Parliament?

[Mark Warawa, Conservative, Langley, BC]

That's a very good question. Thank you.

It is a conditional sentence that we're talking about. The courts would be required to consider imposing conditions, this bubble zone, and non-contact. The offender would know, or should know, that this is where the victim, the child or youth, will be.

In 88% of sexual offences, the victim knows the offender. It is often a person in an authority position over the victim. There's a relationship. The offender often knows the victim, and where the victim lives, works, and goes to school. In situations where it's obvious that the offender knows this, then the courts would be able to say—

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Would the criteria be the relationship of the person? Let's say it's a family member of a friend. What would be the criteria to determine that he should have known? Is it friends or family? This is what we're trying to find out. If he's in a relationship with the child or the family, would that be the criteria taken into consideration by the courts?

[Mark Warawa, Conservative, Langley, BC]

Mr. Chair, the courts deal with this language already. It's already in the Criminal Code. It's commonly used.

The courts and the administrative bodies would determine whether this offender knew or should have known. If the offender is driving down the street and the offender and the victim see each other in a car, in that case the offender would not have known the victim was out on the street. That would be a legitimate defence. However, if the offender were a swimming coach of the victim and went to the pool to do some laps at the same time he used to coach that person, and the victim was practising at that time, then the offender should have known.

I'm giving two scenarios. It would be up to the courts to determine if the offender breached the conditions of release. Again, the courts have the discretion to make sure that justice is done.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Taking into consideration that Montreal is a big city, two kilometres is not a lot. Let's say “should have known” is different from “known”. Let's say someone lives in Montreal and used to coach the victim but didn't know he was living two kilometres away from the victim. The criteria here is two kilometres. As I said, Toronto, Vancouver, Gatineau, and Ottawa are big cities. The criteria is two kilometres. Is it “should have known” that he would live in the same city within two kilometres? Is it reasonable doubt, or beyond reasonable doubt?

Do you know what I'm saying?

[Mark Warawa, Conservative, Langley, BC]

I understand.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you very much.

[Mark Warawa, Conservative, Langley, BC]

I'll repeat that it's up to the courts to determine whether there is a breach of the condition.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Our next questioner is Mr. Wilks from the Conservative Party, for five minutes.