Evidence of meeting #46 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was victim.
A video is available from Parliament.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
Thank you very much. It's a pleasure to be here. Actually, I'm not a regular member of this committee, but I spoke to the bill at second or third reading a few months back.
Conservative
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
It has been a long day, Mr. Chair. It was second reading, of course.
I have a few questions.
You mentioned the right of the victim to a whole list of things, Mr. Churney. I recall meeting a victim in my office a few years back, and he was very concerned about the release or the whereabouts of the offender. He seemed to know what was going on, more or less. He seemed to know that the offender had been transferred to another penitentiary. He seemed to know, if I recall correctly, that the offender maybe wasn't necessarily embracing his correctional plan.
Has it been more of a hit-and-miss thing up until now? Has the release of information not been consistent ? Is that what this bill accomplishes: it codifies certain things, and makes sure there is consistency where before it really depended on circumstances, or the province, or what have you? Is that what you're saying when you say that the bill builds on an already good foundation?
Director, Corrections Policy, Department of Public Safety and Emergency Preparedness
Indeed, I would say that the legislation as it's crafted right now with respect to the release of information to victims really does err on the side of disclosure to victims, unless there's a credible reason not to provide that information, or there's some clear evidence that disclosing that information would somehow impair public safety. I'm not sure the track record has been hit-and-miss, but I think the VBR will certainly emphasize for all federal departments and agencies to always be mindful of the place of the victim and the imperative to as much as possible disclose information when it's requested.
I think it certainly will bring more consistency.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
It's more specific in terms of the information that must be disclosed, if asked for, than is currently the case. Am I correct in my understanding? It's very specific that you have to provide this if they ask for it, whereas before maybe it was more of a policy issue.
Director, Corrections Policy, Department of Public Safety and Emergency Preparedness
Yes.
As it exists right now in the CCRA, there are two categories of information. There is what we call the mandatory class of information that must be disclosed to the victim, and that is generally already public information, information that would have already been available through the trial process, for instance, the name of the offender and the location of the penitentiary where they're serving their sentence.
The second category is what we refer to as the discretionary category of information that may be disclosed to the victim. That's a bit of a longer list of information that may be disclosed at the discretion of the commissioner or the chairperson of the parole board. It's that second category of information that is subject to a privacy test to ensure that releasing that information is on a case-by-case basis, and that it is always appropriate to do so in the instant case.
I would certainly say that this bill would certainly strengthen those measures in ensuring that the onus would always veer toward disclosure, although requests for information are always going to be treated on a case-by-case basis.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
I see.
There was another point you made that I didn't quite understand. It was actually in response to a question from Madame Boivin on two classes of victims, that this doesn't cover all classes of victims. I didn't quite understand that. I was wondering if you could elaborate on that for me.
Director and Senior Counsel, Policy Centre for Victim Issues, Department of Justice
If I can paraphrase, Madame Boivin was asking why the bill only applies to a listed number of federal statutes, and that if by implication a person was a victim of another federal statute, was this legislation creating different classes of victims, some victims with more rights than others. If I can be so bold as to paraphrase for you, Madame Boivin....
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
What kind of victim would not be covered? Do you have an example?
Director and Senior Counsel, Policy Centre for Victim Issues, Department of Justice
Yes. A victim of an offence under the transportation act or under an environmental protection act—
Director and Senior Counsel, Policy Centre for Victim Issues, Department of Justice
This bill is focusing on victims of crime. As I mentioned, it was our view that we were capturing the vast majority of offences that create victimization.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
On the issue of standing, in the United States I believe that the victim has a right to have a say in the sentencing, but obviously the judge would decide. Is that correct? Is my understanding correct? The victim actually can intervene at that level, whereas here it would be limited to victim impact statements, which are important, of course. Is that a correct understanding?
Director and Senior Counsel, Policy Centre for Victim Issues, Department of Justice
In the U.S., a limited number of states—my understanding is that it's eight of fifty—have some form of standing for victims of some offences at some opportunities. I'm sorry to be so vague.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
Do they get to have their say in sentencing, or what specifically do they have a say in?
Director and Senior Counsel, Policy Centre for Victim Issues, Department of Justice
I don't have that information with me.
Liberal
Conservative
The Chair Conservative Mike Wallace
Thank you for those questions and answers.
Our next questioner, from the Conservative Party, is Mr. Wilks.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
Thank you to the witnesses for being here.
My questions are directed to Ms. Morency or Ms. Arnott. I want to raise the issue of identity protection and the accused's right to make full answer and defence under sections 7 and 11(d) of the Charter of Rights and Freedoms.
It's a four-part question, so I'll just ask the questions, and then you can just fly at it and I'll be quiet.
With regard to sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms, particularly where the identity of the witness is not disclosed to the accused, first, is this why clause 12 of the Canadian victims bill of rights would provide for requests to be made for the protection of the identity of the victims, complainants, or witnesses rather than for orders to be automatically granted upon such requests being made?
Second, who would be the decision-maker where a victim has requested that his or her identity be protected?
Third, on what basis would a decision-maker consider whether to take measures to protect the identity of the victim?
Fourth, would the police and security intelligence agencies know in advance whether anonymous testimony would be allowed, and would they be in a position to give assurances to a witness that he or she would ultimately be permitted by a court to testify anonymously?
Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
I'll try to take the questions in order.
On the way that Bill C-32 is proposing amendments to permit some witnesses to testify through a pseudonym, right now that ability exists, but it's not codified. It's not in the Criminal Code. Some courts have made the decision, depending on the facts and circumstances, to allow a particular witness to do so.
I can give you an example. In the 2002 decision in Mousseau, there was a victim in a sexual assault case who was concerned.... There were a number of other victims. Apparently the accused was believed to be harassing some of the other complainants and because he knew their names was alleged to be engaging in those kinds of communications. This last victim complainant who was testifying in the proceedings did not wish to be exposed to the same kind of harassment communications, so in that case, the court determined that the witness could testify through a pseudonym. The jury didn't know how the victim was testifying.
Basically, in that case, the court is always going to have to consider the facts and circumstances, so the test that would be applied under the VBR would be the same as what the courts are doing in practice right now. They'll look at it in terms of the importance of the charter right of the defendant to be able to make a full answer in defence and the proper administration of justice principle of open court. The court can take a number of steps. It's going to be the court that will make the decision, and the court can take a decision based on a consideration of all of those factors and what measures could be taken that will secure or safeguard the accused's right to make full answer in defence.
Could the victim testify through a pseudonym and also through, for example, the use of a testimonial aid where the accused can still see the witness complainant? Basically, it's going to be the court in those circumstances that is going to take the decision on what measures are needed to enable that victim in that situation to testify through the use of a pseudonym and still preserve and protect the right of the accused to make full answer in defence.
Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
Because the decision-maker would be the court, it wouldn't be possible to know with certainty in advance, but what would happen is that the victim or the complainant would make the request through the crown, and the court would be able to make the determination.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
I have one minute, so if I could, I'll just change gears quickly with regard to spousal competency and compellability rules.
Bill C-32 proposes amendments that would create a general rule of witness competency and compellability, whereby the common-law rule of spousal incompetence would be eliminated and spouses would be competent and compellable by the prosecution to testify against their spouses. However, spousal privilege under subsection 4(3) of the Canada Evidence Act would remain, so a husband would continue to be uncompellable to disclose communications made by his wife during the marriage, and vice versa. Would these rules still apply to common-law spouses?
Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
Currently we have a mix of statutory provisions that protect against compellability for spouses and also some common-law rules. These are in the Canada Evidence Act. The bill is seeking to abolish that rule so that all spouses would be competent to testify against their spouse, and compellable, and right now for common law it does apply. For example, in the situation of spousal abuse, that would be covered now under common law, so yes, it would still apply in that sense.
Basically what would happen is that the crown would make a decision in a particular case: would calling this spouse to testify against the accused provide evidence that the crown cannot otherwise bring before the court? The crown would normally take into consideration whether there are other sources of evidence to provide this. If not, if that's the major witness, then that would be an option.
For example, in an impaired driving case, the spouse who sees the accused driving would be able to say what she observed her spouse to be doing, but she would not be required under the victims bill of rights to communicate what had been communicated to her in confidence by her spouse. The communication privilege would be preserved by Bill C-32, but she could still be compelled to testify as to her own observations.