Justice Committee on Nov. 7th, 2013

[The Chair, Conservative, Mike Wallace]

I call to order meeting number 4 of the Standing Committee on Justice and Human Rights. According to the orders of the day, pursuant to the orders of reference of Wednesday, October 16, 2013, we are considering Bill C-489, An Act to amend the Criminal Code and the Corrections and Conditional Release Act (restrictions on offenders).

As you see by the agenda, we have a couple of witnesses for the first hour, and then it's been indicated to me by a couple of parties here at the table that they'd be happy to go to clause by clause for the second hour. Then hopefully we will have some time at the end to discuss the future business of the committee.

Without further ado, I'd like to welcome our witnesses. From the Office of the Federal Ombudsman for Victims of Crime, Susan O'Sullivan, the Federal Ombudsman, is here. And from the Criminal Lawyers' Association, we have Michael Spratt, member and defence counsel.

We'll go as the order indicates on our agenda. We'll have Ms. O'Sullivan start for 10 minutes. The floor is yours.

[Susan O'Sullivan, Federal Ombudsman for Victims of Crime, Office of the Federal Ombudsman for Victims of Crime]

Good afternoon, Mr. Chair and honourable members of the committee.

Thank you for inviting me here today to discuss Bill C-489, which seeks to further protect child victims of sexual offences and to help ensure that victims are not re-traumatized through unwanted contact with their offender.

I would like to begin by providing you with a brief overview of our office's mandate. As you may know, the Office of the Federal Ombudsman for Victims of Crime was created in 2007 to provide a voice for victims at the federal level. We do this through our mandate by receiving and reviewing complaints from victims, by promoting and facilitating access to federal programs and services for victims of crimes, by providing information and referrals, by promoting the basic principles of justice for victims of crime, by raising awareness among criminal justice personnel and policy-makers about the needs and concerns of victims, and by identifying systemic and emerging issues that negatively impact victims. The office helps victims in two main ways: individually and collectively. We help victims individually, by speaking with them every day, answering their questions, and addressing their complaints. We help victims collectively, by reviewing important issues and making recommendations to the federal government on how to improve its laws, policies, and programs to better support victims of crime.

I would like to begin my comments today on Bill C-489 by saying I support the intent of the bill and commend Mr. Warawa for his efforts to further recognize victims of crime within the Canadian system. This bill has two components that I will speak to today: the addition of further conditions under section 161 prohibition orders for offenders who have committed sexual crimes against children under the age of 16, and reducing or eliminating unwanted contact between victims and the offenders who harmed them.

With respect to the first section of the bill, I certainly support measures to protect child victims and the intent of this modification. There are, however, two areas I would like to flag for consideration. The first is the wording of bill, in that it prohibits offenders from coming within two kilometres of the dwelling of their victim in cases where a parent, guardian, or other person who has lawful care or charge of that person is not home. Clearly, the intent here is to protect the victim, both in terms of his or her safety and from further trauma. In reading various transcripts and debates of this bill, I have heard Mr. Warawa recount a story from his own riding of a family who felt constantly re-traumatized, knowing that the offender who harmed their child was living close by. It is important to note in these cases that it's not only the person directly attacked or harmed who suffers from the trauma of seeing or expecting to potentially see the offender, but often family members and other loved ones suffer. With that in mind, I would suggest that while the intent of this clause is to be commended, it could perhaps be made to go further to protect victims, by stating that offenders shall not be within two kilometres of the dwelling, period, regardless of the whereabouts of the parents or guardians.

We have had several similar cases at the office, including cases not related to children, where the proximity of an offender was a very serious source of anxiety, discomfort, and recurring trauma for a victim. In this fiscal year alone, since April we have had 10 cases of victims who have had concerns regarding the proximity of the offender who had harmed them, and of their own personal safety. Though I realize it may be outside the scope of the potential amendments of this bill, I would like to provide for the committee's consideration the point that many victims, not only those under the age of 16, could benefit from this clause and that it should be applied more broadly.

In addition, I would also like to raise for consideration that in a scenario where an offender is advised not to be within two kilometres of a victim's dwelling, especially where the offender has no prior knowledge of the victim's address or residence, he or she is going to have to be advised, to some degree, of where the victim lives. This point is not a minor one. While I absolutely support the intent, there are details contained here that provide for how an offender will be advised of which areas to avoid, and to what degree the victim's privacy and location can or will be protected. As such, it will be imperative that in the implementation and further elaboration of these changes, strict procedural safeguards be put in place to ensure protection of victims' privacy, especially in cases where an offender had no prior knowledge of the victim's address or residence.

The second part of this bill, which tries to eliminate unwanted and potentially traumatic contact between victims and the offender who harmed them, does an important job that is often lacking in our justice system: proactively considering and responding to victims' needs. While this condition could have been imposed previously, putting the onus on the releasing authority to consider the victims is, in my view, an important step forward. What is also important about this point is that it gives some judicial flexibility to allow contact where it may be desired: we cannot make assumptions on the behalf of victims. In reality, we know that the majority of crime is not carried out by strangers. According to the Department of Justice's multi-site survey of victim service agencies, using a one-day snapshot in 2006, 61% of sexual assault victims were a family member or former intimate partner of the offender. For violent offences, 80% of the victims were a family member or former intimate partner of the offender.

Furthermore, according to the survey, Canadians have a greater chance of being harmed by someone in their own family than by a stranger. Of homicides solved in 2009, 33.6% of victims were killed by a family member. With respect to contact with an offender, according to the Canadian Families and Corrections Network, roughly 30% of registered victims chose to stay in contact with the offender who harmed them. This is especially true when the offender is a family member.

When one looks at victimization with an understanding that it often occurs within a family context, the importance of providing some flexibility for restorative opportunities is key. What is unclear at this stage is what process would be in place for securing victims' consent for communication and whether that consent could be revocable at any time.

I would suggest that there must be a clear administrative process in place for victims to provide consent for communication and for victims to be able to revoke their consent at any time.

On this point, in reading the debates, I can see there have been some concerns about whether it is onerous to have judges provide in writing the reasons why they did not impose restrictions on the contact between the offender and the victim witness. In the case of judges, the option of reading their statement into the record does not unnecessarily limit the victims from obtaining this information, as court transcripts are available.

However, as you are aware, judges are not the only releasing authorities. In the case of an offender being released on parole on an unescorted temporary absence, or UTA, where the Parole Board of Canada has the authority, anything not provided in writing will not be discloseable to the victim, thereby reducing or restricting the information that victims have access to about the offender who harmed them and their own personal safety.

In the case of institutional heads as the releasing authority, no information is ever disclosed to victims except for the final decision, once rendered. This is a larger issue that my office is looking at. However, in respect of this bill, I believe that the institutional heads, otherwise known as wardens, should also be required to disclose to victims, in writing, the reasons for not imposing a non-communication order or geographic restrictions.

Victims should have the right and ability to know when these conditions have not been imposed and the reasons why in order to better understand how their safety has been considered and the risks they may face, including contact with the offender.

Finally, I have a couple of suggestions for amendments that relate to more technical issues with the bill. The first pertains to the absence of long-term supervision orders in the list of circumstances in which non-communication orders must be imposed. Long-term supervision orders apply to cases of sexually-based offences, including those against children. They are a special order imposed to allow for some supervision for up to 10 years following a warrant expiry of an offender who is deemed feared to reoffend.

Given the intent of this bill, I bring this forward for your consideration as an amendment to include long-term supervision orders within the bill going forward.

The second point relates to the clause that prohibits offenders from having any direct or indirect communication with any victim witness or other persons identified in the order, unless the victims consent to communication, or refrain from going to any place specified in the order.

In this scenario, because of the use of “or”, as long as the offender complies with one part, he or she would not necessarily be legally bound to comply with the other condition. I think it might be more effective to strike the “or” and replace it with an “and”, allowing for circumstances where both non-communication orders and geographic restrictions have been applied.

In summary, I support the passage of Bill C-489 and would encourage the members to consider the points that I have raised today in making some minor but important amendments to the bill.

I would like to close by emphasizing the critical importance of ensuring that victims' privacy and safety be a priority when the practical realities of implementing these clauses come to pass. We must absolutely ensure that in implementing these new measures the appropriate procedural safeguards are in place and that victims are considered and protected.

Thank you for your time, and I welcome any questions you may have.

[The Chair, Conservative, Mike Wallace]

Thank you, Mrs. O'Sullivan.

The next witness is Michael Spratt from the Criminal Lawyers' Association. Michael, the floor is yours.

[Michael Spratt, Member and Defence Counsel, Criminal Lawyers' Association]

Thank you. Good morning, Mr. Chair, and good morning to members of this committee.

My name is Michael Spratt and I'm a criminal defence lawyer. I practise locally here in Ottawa at the firm of Webber Goldstein Abergel. I'm here today on behalf of the Criminal Lawyers' Association. As you may know, the Criminal Lawyers' Association was founded in 1971 and is made up of over 1,000 criminal lawyers with membership across Canada. It's a great pleasure to be here to provide our input on this important bill.

The CLA supports legislation that's necessary, fair, constitutional, and supported by the evidence. With those principles in mind I can say we certainly support the intent and the goals of the legislation, but I would like to discuss a few areas of concern that we have with regard to the wording, and then some potential implementation problems.

With that in mind, by way of example I'd like to deal specifically with clauses 1 and 2, dealing with section 161 orders and the mandatory probation conditions.

First, dealing with clause 1, the bill seeks to add the option of a geographical restriction between the offender and the victim. Clearly, there is nothing wrong with that in principle at all. The condition is not mandatory; it shall be considered and it may be applied. The Criminal Code indeed allows the judge discretion to add conditions or exceptions to that geographical restriction, which is a positive in our view.

I suppose the logical issue is where the two kilometres came from. I agree that having the option of imposing a geographical restriction such as this is important and is something that judges should consider. But if a judge can exercise discretion about exceptions and conditions, why can a judge not exercise discretions with the imposition of the actual number in terms of the geographical limitation? Certainly, some cases may call for a shorter distance, and some cases may call for a greater distance. Judges know the facts of the case, they know the circumstances of the offender, and indeed, under our sentencing laws, they must consider the input of the victim. These sentencing judges are people who are in the best position to impose the appropriate geographical restriction, whether that be 500 meters, one kilometre, two kilometres, or more.

Now, in our submission, there's always a problem with legislation that is overly specific and then applied generally. That can lead to some problems in both implementation and enforcement. The more flexible approach is the one that we support, and that is general legislation that then can be applied to specific cases through the lens of judicial discretion. A blanket two-kilometre boundary may be too large in small towns due to the size of the town.

There, of course, exists the problem in large cities too, that a two-kilometre radius may be too large, covering hundreds of thousands of people and many locations. That's especially true when we're considering that many programs that are located in urban areas designed to assist in rehabilitation of offenders, which is in everyone's interest, are often clustered together. One of the best examples of that is here in Ottawa.

The Criminal Code provides that judges will have the ability to add exceptions to the conditions. However, having a two-kilometre or a specific geographical radius, and then seeing that it's a problem and adding exception after exception to eliminate the problem is not an ideal solution. A situation like that results, quite frankly, in more error-prone sentencing with more uncertainty, and ultimately it makes the condition much more difficult to enforce at the back end. It would be preferable, in our submission, to utilize judicial discretion to cure those problems. Quite simply, judges should be able to impose geographical consideration that is supported by the evidence and demanded by the facts of the case. That geographical exception should not be decided in a vacuum, but in the courtroom itself.

Moving on to the probation conditions in clause 2, this clause directs a mandatory no-contact provision between the offender and the victim or witnesses or other people identified. Again, it's positive that there is an exception built into this mandatory order. Now, section 732.1 of the Criminal Code already allows for imposition of conditions such as this, although not mandatory in nature. In most cases, and as a busy criminal practitioner, I can tell you that these conditions are routinely imposed by the courts. For example, in domestic cases there is always victim input sought, and if there's a desire by the victim not to have contact, a no-contact condition is imposed. I've never seen the opposite happen.

In robberies, break and enters, frauds, and even thefts from big-box stores, there are almost always provisions that prohibit contact between the offender and the victim, whether that be a person or a big-box store. Even if a victim does want to have contact with the offender, what we see in the courts now is that a no-contact condition is still imposed, with the exception of cases where the victim provides a written and revocable consent.

Quite frankly, from my perspective given what I see in court, the proposed amendments are not completely necessary.

A more practical issue to consider is the language of the exception that is present in the legislation. The exception provides that the victim, witness, or other person gives their consent and that an exception can be built in. The question is, does the consent need to be provided when the condition is imposed, or can that consent be provided at some later date? For example, can the condition be that you don't have contact except with the person's consent, and that the victim can provide consent at the time sentence is imposed and then revoke it later, or alternatively, that the victim cannot provide consent until some later point? That's an issue that I feel needs to be clarified.

I take the latter approaches as probably being the correct interpretation. I'm assuming that the interpretation of the drafters is that the victim can provide consent or revoke their consent, not only at the time when the sentence is imposed but going forward. That seems to make sense since it provides flexibility and, ultimately, puts control in the victim's hands. It would eliminate the sort of absurd scenario of a victim providing consent at the sentencing time and then not wanting to have contact later, but not being able to revoke it because a condition is imposed. That is an interpretation point that may need some clarification.

Ultimately, what we're looking at is a Criminal Code that is already a very cumbersome and weighty statute. The question has to be asked, if these measures are being put into place, if the flexibility already exists, do additional conditions or mandatory conditions need to be added to the Criminal Code? Of course, that's a matter for Parliament. But in my opinion, judicial discretion and its exercise are already achieving a pretty good balance in that regard.

I'll now briefly talk about reasons. Subclause 2(2) requires the court to give written reasons. It's been said by some that courts aren't required to provide a reason for imposing conditions, but that's not entirely true. It's true that there is no statutory duty in this case built into the Criminal Code to mandate that reasons are applied, but there are common law duties and the courts are required to give reasons for important decisions. I would submit that departing from a mandatory condition, or using discretion not to exercise a condition sought by a prosecutor that relates to contact with victims, is the sort of situation that would require courts to give reasons at common law. In that light, I don't think that the amendment contained in subclause 2(2) is really necessary.

More practically to the point--and I appreciate there's a difference between parole boards and trial courts--when you're dealing with trial courts the requirement for written reasons is unnecessary. Oral reasons should be sufficient. There's no principled reason why written reasons should be required. I submit that if that proposed section is included, of course adding some extra statute saying that reasons are required isn't going to change the way things are done, but I'd suggest an amendment to allow oral reasons as well.

Oral reasons are given in very serious decisions about guilt or innocence. Oral reasons are sufficient when sentencing someone to lengthy penitentiary sentences. Oral reasons are a matter of record and should be sufficient. That's important in busy trial courts, where taking the time to reduce what one says in writing--indeed, those oral reasons are already transcribed--adds time and delays the process in a way that is really not desirable from any perspective. It is for that reason that I submit that oral reasons should suffice.

Having said all that, I think the intent and the goals of the bill are laudable. I think many of the measures the bill seeks to impose are already happening in our courts.

I would urge this committee to clarify some language in the bill and perhaps look at using judicial discretion, which is already built into some of these exceptions and provisions, to allow a more fine-tuned applicability to the facts of the case, which can take all facts into consideration at the front end.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Spratt.

Thank you both for those presentations.

We now go to our rounds of questions.

Our first questioner, from the New Democratic Party, is Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you both for being here.

Everyone agrees that this bill is full of good intentions. However, the details pose a few problems. The government, the official opposition and the witnesses who appeared all said that applying the clause related to the two kilometres could be problematic. I appreciate your comments, and you will probably be pleased to know that amendments will be presented when we review the bill clause by clause.

Could you please comment further, Ms. O'Sullivan? We really appreciate the work you do. You are sort of like…

the poster child for the victims—and boy, do they need it.

A number of people have come to talk to us here, and we realize that what they are going through is not easy. The justice system can sometimes seem very cold, very inhuman to them, which is a little unfortunate. That's why any attempt to find a balance and give them more attention within the process is important. These people are often at a disadvantage and alone in the process; it isn't easy for them. These provisions may given them more security, but I'm not sure that they will feel like full participants in the process.

In your remarks, you said that this bill was giving more consideration to victims. Is that enough? What else can we do? We are trying to see what more we could do to help the victims feel that justice has been done for them.

[Susan O'Sullivan]

First of all, you've touched on some very important points. This is one bill before the committee. We do need to look very much in a broad lens at meeting the needs of victims of crime within the criminal justice system.

I am looking forward to seeing the victims bill of rights tabled—

[Françoise Boivin, NDP, Gatineau, QC]

Me too.

[Susan O'Sullivan]

—but I want to acknowledge that this is just one piece.

I think what it's doing, and I certainly reflect on the comments of Mr. Spratt, is that people will say, well, they can impose at certain points already, but the difference here is that this proactive and mandatory rather than discretionary. This means that the participants in the criminal justice system will have to seek the input of the victims.

[Françoise Boivin, NDP, Gatineau, QC]

I see it as being a bit like the victim saying, “Hello, we're here.” We talked with group of victims who said that sometimes everything happens and it's done, and they're left saying, “What the hell happened here?”

So it's as if it's saying, with this bill, “If you don't want to impose it, at least you have to tell me, the victim, why you are not doing so.”

I wanted to see if you were okay with the suggestion from Mr. Spratt concerning the oral at trial. We know that a lot of the decisions are rendered orally by the court. They don't take the time to write because they have so many cases.

What is your position on that?

[Susan O'Sullivan]

That's exactly why I identified those issues in my opening comments. We recognize that there are transcripts that come from a trial. I have no problem with that at all if they can have access to the transcripts.

There's usually a cost associated with the transcripts—

[Françoise Boivin, NDP, Gatineau, QC]

Exactly.

[Susan O'Sullivan]

—so once again the victim will have to bear the burden of cost.

That would be the issue.

[Françoise Boivin, NDP, Gatineau, QC]

That was my—

[Susan O'Sullivan]

So you can have the transcript if you can afford it. You'd have to look at either waiving all costs—

[Françoise Boivin, NDP, Gatineau, QC]

So it's not automatic. If it's an oral decision by the court, the victim has to apply—

[Susan O'Sullivan]

They have to request the transcript. I have to be frank here. I don't know which courts charge or what, but I know there are potentially costs associated with that.

[Françoise Boivin, NDP, Gatineau, QC]

How many cases, in your view, would this bill apply to?

[Michael Spratt]

The reasons provision applies only to proposed subparagraph 732.1(2)(a.l)(ii), so in exceptional circumstances. That would reduce the number of cases.

In a busy trial court that's dealing specifically with domestic pleas or domestic matters—and there's a court set up just for those things—there may be a handful of cases a day to which this applies. Sometimes judges write slowly. We certainly see that in the difference between appearances in the Ontario Court and appearances in the Superior Court, where more often the judge will write down the reasons while on the bench. If we're looking at adding five or ten minutes to a proceeding—

[Françoise Boivin, NDP, Gatineau, QC]

They can't use an iPod and just tape it themselves and have it transcribed after, or whatever?

[Michael Spratt]

I suppose they could. It certainly would be advantageous to have a process or exception to allow victims to obtain court transcripts at no cost. That would be, I think, something very supportive.

There are some technological measures put in place right here in Ottawa that allow same-day access to the oral recordings and you can actually take them home for a very nominal fee. We're talking about a couple of dollars.

[Susan O'Sullivan]

If I could add one point, I think it's also important to clarify that we're talking about time in court here. This bill also talks about the parole board decisions and it talks about—if I may use the word “warden”—the institutional head. I think those have to be in writing, because, first of all, any Canadian can get a copy of the decision registry of the parole board, but the decision registry is not a transcript.

This committee may have heard me speak before about the inability of a victim to get a copy of the audio tape that's done at the time of that. I think it's critical in that case, as well.

When wardens make these decisions, as people are probably well aware, there is no transcript. Victims don't even have the same abilities to attend as they would at a parole board hearing. I just want to make sure I emphasize that in those two cases they should absolutely have that available in writing.

[Michael Spratt]

I think that is a well-reasoned position.

[The Chair, Conservative, Mike Wallace]

We're well over time. Thank you very much for those questions and answers.

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

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

Thank you, Chair.

I want to continue on about the written responses. I think it's inherently clear that those need to be given for some of the reasons that haven't been mentioned either. For instance, when a judge decides not to put in a portion of a reasoning, I think it's incumbent on that judge to also give reasons as to why they're not doing that, because from the perspective of victims, it's not like they're in the court system every day the way lawyers or police officers who become accustomed to the rules and to understanding them are.

I wonder, Ms. O'Sullivan, if you could continue on with regard to the importance of written reasons, not only from the judge's perspective but also from wardens' perspective, from every perspective. I think it's very important to this bill that we hear not only why the reasons are going to be put in but also why they're not going to be.