Justice Committee on Nov. 7th, 2013

[Susan O'Sullivan]

I thank you for that opportunity, because you've touched on something that's really important. First of all, when a person becomes a victim of crime, it may be the first contact they ever have with the criminal justice system, which all of us here know is complex and complicated. They need information if they're going to be involved with the criminal justice system. Part of that is information about what their rights are, what they can or cannot have within that access to information process.

Part of this is that by providing a written reason, they're going to have concretely why the condition was not imposed or have that information available to them. That's very important because this is about rebalancing the system. People will talk about a victim being a participant in the criminal justice system—not a party but a participant—which they already are through a victim impact statement. This is one more process that's going to keep a victim informed about why decisions are made. And whether they agree with that or not, at the end of the day, they will have been respected, their input will have been considered, and they will know why the decision is being made. They may not ultimately agree with it, but at least they and their input will have been considered.

I think this proactive way of making sure that people explain that reason is going to help victims understand. It really is about Canadians' confidence in the criminal justice system that victims be respected as part of this process.

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

Along those lines, Mr. Spratt, as Madame Boivin mentioned, there is an amendment coming forward with regard to geographical restriction.

Touching on that, and you mentioned this in your commentary with regard to support services for those who may be caught within that geographical restriction, you would also agree that the judges normally put in an exception to the rule, that if the accused needs to get help within that area there is an exception to the rule. Is that correct?

[Michael Spratt]

That's correct. I think the practical point is that when you have the geographical exception where two kilometres, for example, might be overly broad because of those services that we've talked about, the problem arises when multiple exceptions are needed to make that geographical condition reasonable and appropriate. When you have those multiple exceptions, it adds a lot of uncertainty to the sentencing process.

I'm sure from a victim's standpoint, it adds a lot of uncertainty as well. I'm seeing the person asking, “Is it falling under an exception?” And this is to provide certainty. From a police officer's perspective, it provides a lot of uncertainty about enforcement.

From an accused's perspective, it also opens them to a deprivation of liberty and an arrest for something that they're doing lawfully. They're within their boundary, there's an exception; usually they're arrested first, brought to court, and then prosecuted. If they can show that they have fallen into the exception, then there will be an acquittal and there will be a recognition that this wasn't appropriate action.

It's all that comes before it that is undesirable.

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

I wanted to touch on disclosure as well.

Ms. Sullivan, you had brought that up. It always becomes an issue on disclosure with regard to how far you go with it, especially from a police perspective. Sometimes police officers are not given the same information from the perspective of disclosure as the victim might get, as the courts might determine what the police can get. It becomes very troublesome for the police from time to time on disclosure issues.

From the perspective of this bill and the involvement of disclosure to the victims, it would seem to me that there needs to be some involvement by the police, other than the investigation, that would allow them also to have understanding of the final decision of the courts so that they are not interpreting what the sentence is as opposed to what the real sentence is. That's where I get back to written reasons from the courts.

I'm wondering if you could speak to some of the concerns you had around disclosure.

[Susan O'Sullivan]

I think what I wanted to highlight was that certainly from the courts there is a transcript that could be available—although written, obviously, would be preferable. But I really want to emphasize, when it comes to a decision by the parole board and by the head of the institution....

Right now, for example, if there's a decision by the warden on a UTA, the victim won't get the final decision. They won't get the reasoning behind that. But to them it's important to know that the people who are making these decisions have considered their safety and their risk.

I can tell you, from talking to victims across this country, that they are unsure of how these authorizing decision-makers are making those decisions and how they are factoring in their safety.

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

If I can just intervene—

[The Chair, Conservative, Mike Wallace]

No, you can't.

[Voices]

Oh, oh!

[The Chair, Conservative, Mike Wallace]

But a good try.

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

Oh, I was trying; I was watching you, you know.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

Our next questioner is from the Liberal Party of Canada, and it's Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

It sounded so good coming from David, I was almost going to give him some of my time. But I guess I won't.

Thanks to both of you for coming in and for your good presentations.

Mr. Warawa indicated in his testimony that there are thousands of victims. There's no question that there are thousands of victims, but with this particular bill, in and of itself, do either of you have any idea of the numbers we're looking at? How many people will be impacted by this bill?

[Michael Spratt]

I don't have a number that I can pull out. What I can tell you is that in some respects, the bill won't have much of an impact. It's already being done, from my perspective.

What I can tell you from my experience in court, and our members' experience in court, is that there may be some cases, and there always are some exceptional cases, where the appropriate conditions aren't imposed, whether it just hasn't been considered or it hasn't been raised by the defence or by the crown attorney. These conditions are routinely imposed, and I see them in case after case.

We're talking about a large number of people, both accused and victims and witnesses and related parties, who will be affected by these conditions. But to some large extent they are already affected by the intent of these conditions, because they are imposed on a routine basis.

[Susan O'Sullivan]

What I can tell you is there are approximately 6,000 to 7,000 registered victims of offenders who are in a federal institution.

The other thing I can say is that when it comes to a victim's lens, for them it's not a matter of numbers but a matter of their involvement with the criminal justice system—whether they have they been respected and whether their safety and risk was considered when these decisions were being made.

[Wayne Easter, Liberal, Malpeque, PE]

I don't think there's any question that people were personally affected where the judicial conditions were not in place. Yes, they're impacted and impacted heavily.

As to the legislation itself, it would be useful for us to know exactly what we are looking at. You said there are 6,000 to 7,000 victims registered. But are we talking about 100, 50, or less than that when we consider whom this bill is going to apply to? As responsible legislatures, we should know that and we don't. That's one of the problems.

In your estimation, judges now have the authority to impose these kinds of conditions. We heard a witness last Thursday in camera, and we've heard from others. The reason for the bill is that, for whatever reason, judges don't impose conditions. In some cases, if you're looking at a victim across the road from the offender. I have to shake my head and wonder how a judge could allow that to happen. Why does that happen, do you have any idea? It seems ridiculous to me that an offender would be across the road from a victim and a victim's family.

[Michael Spratt]

There are some occasions where the issue isn't addressed. I take it that you've heard about some of those cases. I can tell you that the crown, at least in the cases I've dealt with and that I've heard of, always asks for these conditions and they're always considered by the judge. So I'd be very interested in seeing a transcript of those cases. I'd like to see if the crown attorney didn't mention it, or if there were reasons given, or why it wasn't imposed. I think that evidence should be obtained.

There are cases where offenders and victims live in close proximity to one another. In such cases, using judicial discretion to craft the conditions necessary to ensure the safety of the victim and the absence of contact requires a careful balancing. Certainly, it's in no one's interest to render an offender destitute, to put him on the streets, to remove him from his community, from his support system, from resources that could be used to rehabilitate him.

Now, there are some exceptional cases. There are cases where victims and offenders may live in close proximity. It's in those cases where judicial discretion has to be honed. We're blessed with a good judiciary and with a well-funded, competent, intelligent prosecution service. Between the submissions of the crown, judicial discretion, and a full knowledge of the offender's circumstances and the victim's input, it's up to the judge to craft the conditions necessary to make sure that the offender isn't put into a situation where he loses his home, his family, his support, or his employment. That's not to anyone's benefit. Through judicial discretion, even in those cases where they reside close together, conditions can be put in place and crafted to make sure, I submit, that there's a balance of interests.

[Wayne Easter, Liberal, Malpeque, PE]

In the court system, we have either oral or written justifications. But let's go back to these warden or parole board decisions where we don't have these justifications. The victims don't know the thinking behind the decisions. Does this bill go far enough in that regard?

[Michael Spratt]

I think so. I want those reasons as well. I didn't always get those reasons when those conditions were imposed on the clients that I represented. I think everyone deserves reasons. People who make these decisions are under a duty to provide reasons. We have that in our courts through oral reasons and transcripts and audio recordings. Certainly, when those decisions are being made by parole boards, wardens, or other members of the justice system, I think all parties are entitled. Victims, the community at large, and the offender are all entitled to reasons and justifications for imposing them.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

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

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Thank you to our witnesses for being here today.

Ms. O'Sullivan, you may have heard that when we last considered this bill we heard from the parents of a victim. It was very moving testimony about a victim who was abused over a long period of time. The victim found the courage to bring that offender to justice. After a few months of incarceration he was allowed to return to his home, which was right across the street from her. Every day, she saw him. Every day, her parents saw him.

For me, and I think for others on this committee, the testimony we heard really brought home the issue of how the offence impacted not only the victim herself but also other members of the family, and how there's this healing process that the victim, the family, and others in the neighbourhood have to go through after an offence like this is committed.

What do you think of the argument that we hear from some people, as we heard from Mr. Easter and others, that the system works okay most of the time? How many people does it really impact? If it's not a large number of people that this legislation is going to help by making it an absolute requirement for the court to consider the impact on the victim of the location of the offender, then why bother?

From the victims who you speak to, what's your view of that argument?

[The Chair, Conservative, Mike Wallace]

Before you answer that question, I want to caution members of the committee that we were in camera for that.

You didn't mention any names or anything, which is fair, but just be careful about what you say to members in public.

Thank you very much. Go ahead.

[Susan O'Sullivan]

I have the same challenges when I speak to the victims I deal with, but I will deal with the issue of proximity, and that's what we're talking about when offenders are released back into a community. As I've indicated, in the last fiscal year alone, we've had 10 complaints with regard to this.

Obviously, that's hugely devastating, and it's not just.... As I said in my opening comments, it's very reflective of the fact that this impact goes beyond the victim. It goes to their family and could go to other members close to them as well. That's the impact of this.

I think what's important about the bill before us is that it makes it so that the decision-makers must consider the victim's safety. It's not discretionary; they have to consider it. It leaves the flexibility in there if a victim in fact wants to look at different restorative measures.

I think you've hit on something that's really important here. We need to start ensuring that the legislation considers victims' input, that their needs are considered in relation to these decisions that are being made, and that they have the information as to why these decisions are made, when they are made, and what are the reasons behind them.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Do you have a view on whether the system works well most of the time? How does it impact victims in those few cases where it doesn't, where the court system doesn't work?

[Susan O'Sullivan]

Well, the impact is huge, obviously. If we want healthy and safe communities, that means we balance them and look after all of the people in our communities. If we, as people involved in the criminal justice system, have a victims lens on it and consider their input and their needs, obviously that's going to be helpful for the families to know.

Here's what we deal with when people come to us. They ask, “Did they even consider the risk and my safety?” They're the same kinds of questions that I know perhaps.... They ask how the decision got made that the offender was being released, either around the block or across the street, in close proximity, and the impact on them....

At least now we're going to have it so that they must have a look at this. They must be proactive. They have to state in writing why they're making these decisions, so that information is going to be available. That means they have to talk with the victims. They have to seek their input about their concerns and their safety. Then they're assured that their safety is being considered. I think this is a hugely important step.

I do have some statistics. For example, I made a recommendation to include and look at the long-term supervision orders. I can tell you that as of April 15, 2012, the courts have imposed 768 long-term supervision orders. Of those, 71% are for a period of 10 years. There are currently 680 offenders with long-term supervision orders. Of these, 463, or 68%, have at least one current conviction for a sexual offence.

I also have data from the Stats Canada report on adult criminal statistics in Canada in 2011-12. In 2011 and 2012, probation was the most common sentence in adult court, at 45%. It says that 45% of the sentences were for probation and 4.6% of sentences were conditional sentences.

They use these numbers, if I have this correct. I do have my research person behind me. Is it 110,885? Would that be the number...?

There is some data available through that. I am quoting a Statistics Canada adult criminal statistics report. There is data around that, but I still want to balance those comments with this: it's really about how a victim of crime proactively knows that their safety is being considered when these decisions on release, particularly back into the community, are being made.

[The Chair, Conservative, Mike Wallace]

You have one minute.