Justice Committee on Oct. 21st, 2014

[The Chair, Conservative, Mike Wallace]

Welcome, everyone, to meeting number 47 of the Standing Committee on Justice and Human Rights. The orders of the day are pursuant to the order of reference of Friday, June 20, 2014, for Bill C-32, an act to enact the Canadian victims bill of rights and to amend certain acts. We're beginning our study of that bill today.

We had the minister at our meeting before the break. Today we have from Mothers Against Drunk Driving, Andrew Murie, chief executive officer, national office; as individuals, Claude Laferrière, who is a lawyer, and Robert Hooper, who is a lawyer and a victims right advocate; Steve Sullivan, former Federal Ombudsman for Victims of Crime; and from Boost Child Abuse Prevention and Intervention, Karyn Kennedy, the executive director.

Thanks to all of you for joining us today.

In the order listed on the notice of meeting, we will have each witness give a presentation of up 10 minutes. Then we will go to a round of questions and answers from all parties.

We will start with Mothers Against Drunk Driving. Andrew, the floor is yours.

[Andrew Murie, Chief Executive Officer, National Office, Mothers Against Drunk Driving]

Mr. Chair, good afternoon.

I'd like to thank the committee for this opportunity to present MADD Canada's comments on Bill C-32. Impaired driving is the leading criminal cause of death in Canada. In 2010 there were 1,082 impairment-related crash deaths in Canada. That is almost double the homicide rate of 554 for the same year.

MADD Canada estimates that on average every day in Canada almost four people are killed in impairment-related driving crashes, and another 175 people are injured. As you will hear from many victims organizations throughout these hearings, losing a loved one as a result of a crime is a life-altering event. All aspects of your life are affected. Celebrations, religious occasions, and life milestones are never the same when your loved one is no longer there to share in these special moments. A lot of people never recover from their victimization and suffer from ongoing mental health issues such as depression and addiction.

An offender serves a sentence, but a victim is given a life sentence of sorrow and heartbreak. Most victims come into the criminal justice system expecting a system of fairness. Most victims leave the criminal justice system severely disappointed and frustrated. They are left wondering where their rights are as victims.

Previous government legislation gave victims the right to read victim impact statements in court, increased the victim surcharge fine, made the victim surcharge mandatory, and limited the credit for time served prior to sentencing. These were all steps in the right direction for victims' rights. However, there is still much work to be done before most victims of crime are treated fairly and see justice served by the criminal justice system.

I will now highlight some of the key provisions of Bill C-32 from the perspective of MADD Canada and its members.

Under the section dealing with right to information, we're very encouraged by the following provisions: victims will be given more specific information on the criminal investigation and on the accused offender; judges will be required to ask the prosecutor if reasonable steps have been taken to inform the victim of any plea agreements in cases involving murder or serious bodily injury; victims will be able to request copies of bail, sentence conditions, and probation orders; and amendments will be made to the Corrections and Conditional Release Act to increase the rights of registered victims to access information on offenders' parole board hearings, status, and progress. This includes providing victims with information about the offenders' release dates, destinations, and parole conditions.

Under the section dealing with the right to participation, we are pleased to hear that Bill C-32 will increase the rights of victims to state their views at various stages of the criminal justice process. Under the section dealing with remedies, we're very pleased that victims will have the right to make complaints if their rights are infringed. Those are all positive changes that in our opinion will serve to improve the rights of victims of crime.

However, we do have some concerns about the bill.

Under the right to information section, the provision that a prosecutor must take reasonable steps to inform the victim of a plea agreement in cases involving murder or serious bodily injury, we are concerned that there are no ramifications if this requirement is not met. There is no effect on the validity of the plea agreement. In other words, the prosecutor and judge have a responsibility to ensure the victim is informed of the plea agreement, but there is no sanction or recourse if the prosecutor or the judge fail in that responsibility.

With respect to victim surcharges, we are deeply disappointed at the recent court decision to strike down the increases to the victim surcharges and make them mandatory. These funds go into victim services organizations which are extremely underfunded as it is. The loss of these victim surcharges will have a serious negative impact on organizations that already struggle to provide services and support to victims of crime.

Bill C-32 only deals with reasonable timeframes for payment of the victim surcharge. It is our opinion that victim surcharges need to be a key part of the criminal justice system. Under the right to participation, we believe victims should be allowed to make electronic or video presentations as part of their victim impact statements, both in court and at parole board hearings, rather than be limited to an oral presentation and a static photograph. Under the right to protection, when dealing with offenders in small communities, the parole board should consider the implications of having offenders go back into the same communities where the victims live.

We also believe there's a need to re-examine the definition of victim. Many victims never enter the criminal justice system because the offenders who killed their loved ones are also killed in those crashes or never formally charged. These victims suffer as much emotional trauma as victims who enter the criminal justice system, but a lot of times are denied most of their rights contained in Bill C-32, and many of these individuals are also denied victims services at the local level.

In conclusion, Bill C-32 expands the ability of victims to obtain information and to ensure their viewpoints are sought out at various stages of the criminal proceedings. Offenders will be held more accountable. The real impact of Bill C-32, however, will depend largely on the commitment of provinces and territories to strengthen their own victims' rights. For example, currently all the provincial and territorial criminal injury and compensation acts preclude impaired driving victims from recovering damages. Impaired driving is the single large criminal cause of death in Canada and is one of the leading criminal causes of injury. Victims of impaired driving are no less worthy or in need of compensation than victims of other crimes. Consequently, impaired driving victims should have the same right to compensation as victims of other crimes.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you, sir, for that presentation.

Our next present is, as an individual, Mr. Laferrière. The time is yours, sir.

[Claude Laferrière, Lawyer, As an Individual]

Mr. Chair, I would like to extend my sincere thanks to the House of Commons Standing Committee on Justice and Human Rights, and especially to Ms. Françoise Boivin, the member for Gatineau, for giving me the opportunity today to express my concerns about clause 20 of Bill C-32.

First, the cause of victims of crime must be separated from partisan politics and be based on a fair and complete interpretation of the law and the facts, and not on rhetoric.

Second, this new right of victims can be understood only in light of section 7 of the Canadian Charter of Rights and Freedoms, the Constitution of Canada, which states that everyone has the right to life, liberty and security of the person. In this case, we are talking about the right of victims of crime and their families to life and security.

Third, the provisions in Bill C-32 on victims' rights to information, participation, protection and restitution are purely declaratory and do not impose any specific obligations or responsibilities on justice system stakeholders, or create any enforcement procedure, timeframe or sanction in case of failure. Here I am referring to clauses 28 and 29 in particular.

These provisions are merely statements of principle that do not impose any constraints on anyone. One could almost be satisfied with them because our courts generally comply with these general principles, if it were not for the new provisions that are completely foreign to the cause of victims and cast doubt on the legislator's real intent, which in light of clause 20 in particular seems increasingly vague and ambiguous. One would be justified in asking the legislator who suggested clause 20 in a bill for victims, because whoever it was is clearly not a victim. In fact, that is my question for you. Who suggested this clause?

If the legislator had wanted to respond to calls from the police and crown attorneys, it could have proceeded differently and introduced a separate bill that could have been called the Police and Crown Immunity Bill. However, that would have been a clear indication of federal interference in the civil law of responsibility, which is a provincial jurisdiction. This would have led to another constitutional debate before our courts, in addition to giving our police officers and crown attorneys quasi-judicial status in the meantime.

Fortunately, in Canada we can still sue police officers and crown attorneys for professional misconduct in civil court, or go through their professional association. However, if a law on immunity of the police and the Crown were passed, or if clause 20 becomes law, which is what we anticipate, it will no longer be possible to sue them in civil court without causing a constitutional dispute.

Could it be that the government does not want to hold this debate openly and directly, yet still wants to create this immunity using the cause of victims?

Fourth, clause 20 of the bill is reminiscent of some Criminal Code provisions, which we will come back to. Regarding clause 20, I want to point to the impairment of the police's discretionary power, and the adverse effect on the prosecutor's discretionary power.

In addition to clause 20, there is part IV of the Criminal Code, entitled “Offenses Against the Administration of Law and Justice”, which applies to everyone without discrimination. These are provisions on corruption and perjury. These provisions have proven effective in court.

However the wording of this new clause 20, which purports to protect police and prosecutorial discretion, is indicative of a spectacular shift, because the legislator is confirming the immunity of the police and the Crown from potential complaints or recriminations by victims of crime and their families for professional misconduct or negligence, without saying so in so many words. This could even open the door to criminal prosecutions of victims and their families if the police or the Crown, or both, should be offended by their statements in the media, for example.

How did we get to this point? Simply put, the victim must not interfere with the discretion of the police, the Crown, and so on. Otherwise, the victim risks being charged with interfering with the administration of justice, according to clause 20.

And since the bill does not set out any objective criterion for determining what constitutes interference with the administration of justice by a victim, for example, we are to understand that the criterion is subjective and therefore left to the discretion of the police and the Crown.

If this bill were passed as is, there would be a significant reduction in victims' rights when it comes to their freedom to express their opinions publicly or privately. Public debate demands that victims and public commentators, journalists, editorial writers, lawyers and other stakeholders be able to express their opinions and even their anger or dissatisfaction regarding legal matters freely and publicly.

The reasons for including this provision in a bill to help victims of crime and their families are unclear, but it is reasonable to think that they have something to do with a hidden agenda whose implications are impossible to know. Based on subjective criteria, clause 20 seeks to limit the scope of a bill that does not offer anything new.

Did this provision come out of some sort of union agenda of police officers or crown attorneys? It is reasonable to think so. In Quebec, we are all aware of what police officers and crown attorneys are capable of when it comes to strikes or work slowdowns. I will come back to this with some examples.

I therefore submit that clause 20 is an attempt to abuse the law and is designed to derail a bill whose purpose was to help vulnerable people: victims of crime and their families. But what is most disturbing is that the police and crown attorneys will be able to use this bill to protect themselves if they are sued for professional misconduct in connection with high-profile criminal trials and labour relations conflicts. Ultimately, the police and crown attorneys will have used victims to serve their own ends.

I would now like to make a some separate comments regarding the 2012 symposium.

Quebec's main contribution to standing up for victims came out of the 2012 symposium organized by Marc Bellemare, the former Minister of Justice and Attorney General in the Liberal government of the Right Honourable Jean Charest, and attended by the Honourable Christian Paradis, then minister and Quebec lieutenant, and the Honourable Bertrand Saint-Arnaud, Minister of Justice and Attorney General in the Parti Québécois government, as guests of honour. The governments of Quebec and Canada were sponsors of the event. I assisted senator Pierre-Hughes Boisvenu, who led the workshop on a bill of rights for victims and their families. In my opinion, the symposium was an historic event, a clear indication that vulnerable people rightfully want rights, dignity and legitimacy, both because of the exceptional number of participants and because of the quality of the speakers.

The main conclusions of the symposium were that victims or their families should have the right to representation by a lawyer whose fees and expenses would potentially be covered by provincial legal aid, and who would potentially exercise a veto in a plea bargain, and even appeal a verdict or sentence in a criminal case on their behalf. However, all the recommendations that came out of the symposium organized by Marc Bellemare were ignored.

To illustrate the importance and appropriateness of having an independent attorney for victims, I submit the following two cases to you orally. The first case is the murder of the late Jacques Jong and the fictitious case of Stéphanie. However, since I am running out of time, I will simply conclude by saying that for now, the goal of my testimony today is much more humble than trying to bring about the recommendations of the 2012 symposium. I simply ask that you remove clause 20 from Bill C-32. This clause is not relevant or useful or appropriate for a law that has to do with victims. Moreover, if police and crown attorneys want a debate on their immunity, they can do so in the context of an independent, separate bill, and not in the context of Bill C-32.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Our next presenter for 10 minutes is Mr. Hooper.

[Robert Hooper, Lawyer, Victims’ Rights Advocate, As an Individual]

Thank you, Mr. Chair, and members of the committee, for allowing me to speak today.

I'm a personal injury lawyer and victim rights advocate. My law practice since 1992 in Ontario and 2007 in New Brunswick encounters victims of various crimes, including but not limited to assault, sexual crimes, and murder, on a daily basis. In my representation of these parties in the civil justice system, I give information and guidance daily concerning the involvement, or lack thereof, in the criminal justice system in Canada as a victim. Also, I come before you as the chairperson of Walk With Me Canada Victim Services, a front-line service organization to trafficked victims.

Candidly and honestly, there is no uniform bill which will satisfy all victims. I only speak for the victims I encounter in the two spheres mentioned above, and even in that case some of them would look for different provisions in a victims bill of rights.

As a general overview, I take the position that the bill strikes the appropriate balance among the rights of the victim, the rights of the accused, and the administration of justice in this country. In particular, it is my view that the bill looks at the Charter of Rights and Freedoms, the accused offender and for the first time looks at the rights of the victim of crime and places at least some emphasis on his or her right to gain information and to be heard before the criminal justice system in this country.

The overarching complement of this bill is that the provisions do not lengthen the criminal justice process. I tell you that uniformly and unilaterally victims indicate to me on a daily basis that they do not want a bill of rights, or any other piece of legislation for that matter, that lengthens the process by which the alleged offender is brought to justice and sentencing takes place. Efficiency and timeliness in the process is in order for those victims. I am told this will allow the true healing process to commence, and that is a very important component to the victims I represent on a daily basis.

It is my view that clauses 6, 7, and 8 are the cornerstones and stepping stones to a system that will start to show compassion, empathy, and respect for victims of crime in this country. In particular, subclauses 7(a) and 7(b) are germane to the success of this process.

One of the most common complaints raised by my clients and those involved with Walk With Me Canada is that they are not kept apprised of the investigation and the criminal proceedings. In other words, they are not alerted by the court system, being the arresting police force, the crown attorney, or the victim services office, of ongoing court dates, adjournments, and vital information to allow the victims themselves to decide on their own whether or not they would like to be part of the process on that day or future days. It's key that if they don't attend on one occasion, they're still kept apprised of the next occasion. That should be their choice, as I hear it from them, not the choice of a representative of the court system. It is most important to the people I serve that they be given the information and be allowed to make a decision themselves as to whether or not they attend and how they involve themselves in the criminal justice process.

I will share with you a story of a sexual assault victim who was assaulted in a community in Ontario in which she now does not reside. The alleged perpetrator is her former stepfather. The criminal charges are ongoing presently. I spent a lengthy period of time with this young woman and her biological father. Over and over again, the key piece of information that bothered this young woman was the fact that she had no access to the status of the criminal charges against her perpetrator, or the status of his attempt to change his bail conditions. In fact, she had so little information about the criminal justice system in general that she was afraid because she no longer lived in that community the accused person, with his power, would be able to negotiate the charges being withdrawn or in her words, ”they would disappear”.

I was there to gain information about whether she was going to commence a civil litigation case. In the two and a half hours I was with her, the overriding theme from this young 17-year-old woman to me over and over again was, "What if he goes down to the police station and tells them to withdraw the charges because I've left town because I don't care about this any more?" She told me that she and her biological father had both made numerous attempts to gain that information from various sources in the system, so I applaud subclauses 7(a) and 7(b) in the belief that if that information is actually carried out by the provincial authorities, the experience of this young woman in the future will not exist, or a lot fewer similar cases will exist in our system.

Accordingly, on behalf of the victims whom I have the privilege to interact with on a daily basis, I strongly support the clauses on the right to information, most importantly the right to timely and accurate information, in order that the victims may start to make their own choices about how they deal with the criminal justice system and their perpetrators.

The parts of the bill concerning the protection of the victim, in particular their identities, is also important to the people I serve. One of the ongoing themes and concerns is intimidation, particularly in the human trafficking world. A lot of human trafficked victims and sexual abuse and sexual assault victims are concerned about the requirement of being in a courtroom with the very person who breached their trust, intimidated them and took advantage of them through the system. Having the ability to be protected and not be intimidated in the process by the use of testimonial aids as an enshrined and guaranteed right, as opposed to requiring the crown attorney to bring a motion before the court, is an advancement of rights that I strongly support.

With respect to the participation section, it is my view that clauses 14 and 15 are a step in the right direction. Clause 14 is a very good step that allows the victim to participate in the ongoing proceedings outside the courtroom when plea bargains and arrangements for sentencing are being discussed. It would be very helpful if that clause were to set out a list with a minimum number of times where a party may or should be involved, for example, that their views at least be heard on the issue of the withdrawal of a charge, or a plea to a lesser but included offence, and of course, on sentencing. Here I pause. In the summary, paragraph (k), which I overlooked when I made my notes, will guarantee in the Criminal Code, hopefully under section 718, that sentencing principles will be amended to include that.

Clause 15 dealing with the victim impact statements is a positive development for victims in Canada. The use of a common victim impact statement and a community impact statement will certainly add to the use of victim impact statements. I am told by the victims I represent that the more tools they have, the better. If you simply give them a pen and a blank piece of paper, they're less likely to do a victim impact statement, so I applaud that there are provisions for a common victim impact statement. It may not be one size fits all, but it's certainly a document that I am told by the victims I represent will be of assistance in getting the ink flowing toward the victim impact statement.

Having a specific restitution order enshrined in the victims bill of rights will be of assistance to victims. For example, the court having the ability to assist in obtaining a civil judgment against a labour trafficker will, as I understand from the victims, allow them to regain some dignity and potentially provide some financial stability to restart their lives. It is trite to say that putting any streamline in the process that would allow the victim to recover financially from the devastation of a crime is a good thing.

The complaints process set out and known as the remedy section comprising of clauses 25 through 29 is also one that I support. Having the ability to complain to a body which has the right to remedy the infringement and/or the denial of the right under the victims bill of rights will, in my view, give the document some teeth.

It is my view that having the ability to complain to a body that has the duty, the power and the knowledge to remedy the infringement is a step in the right direction. I know that some of my colleagues and some of the people who testify would like a uniformed body, but as I understand the British North American Act and the Constitution of this country, it would be virtually impossible for a federal body and a federal piece of legislation to have any teeth against, for example, a municipal police officer who decided not to carry out his duties of informing that the offender had been let go on bail. It would be beautiful if we could do that, but by virtue of the legislation we have in this country right now and how we carry out the rule of law, that is virtually impossible in my view.

I anticipate that clause 27 will be somewhat controversial and some witnesses will want status in the criminal proceedings. As indicated at the commencement of my comments, the victims whom I represent and have interaction with through Walk With Me Canada do not want status, nor do they want to be involved directly in the criminal justice system with a lawyer as an official intervenor, or be given standing. The delay of the process is the paramount concern of the people that I represent.

I could go on about how I don't think that would work with the rule of law in our Constitution and our Charter of Rights. With the greatest respect to my profession, adding another lawyer's voice to each and every criminal proceeding is, perhaps, not consistent with the rule of law, but more importantly would bring the administration of justice to a grinding halt. The amount of time it takes at this moment to process a case borders on delay in many jurisdictions, and having the victim represented by a lawyer and allowed to make submissions at each and every turn of the case would, in my view, revictimize the person as they would be dragged through a more lengthy court proceeding.

The second question that would be asked on the right to counsel would be where the funding would come from, and, as Mr. Murie has indicated, if the provinces would like to move that along—because that's probably in their jurisdiction, provincial legal aid—there may be an ability to set up a system, but presently, the way we govern this country, it would be an impossibility. My respectful submission is that in the administration of justice, we would be hearing about Mr. Askov a lot more often in our court system than we would care to. There would be many more offenders going loose because the delay was too long.

Those are my submissions, that I think giving the victims the right to participate, to give information, and have a remedy for restitution are all appropriate steps in the right direction.

[The Chair, Conservative, Mike Wallace]

Thank you very much, sir, for that presentation.

Our next presenter is Mr. Sullivan. The floor is yours for 10 minutes, sir.

[Steve Sullivan, Former Federal Ombudsman for Victims of Crime, As an Individual]

Mr. Chair, thank you to the committee for allowing me to come to testify on Bill C-32.

I am here as an individual, but I come with a wide range of experience. I was formerly the federal ombudsman for victims of crime. I currently work in an organization called Ottawa Victim Services, which is a front line, community-based agency that works with victims of crime. I also teach at Algonquin College in the victimology program. I am here as an individual, and so I don't represent any of those organizations but am happy to draw on the experiences of that work.

There are many positive aspects to Bill C-32. Frankly, I think much of the positive stuff isn't so much found in the victims bill of rights as in the changes to the Criminal Code and the CCRA. I'm not trying to say there is something wrong with the victims bill of rights, but what concerns me is more what people are saying about the bill than what the bill actually says.

We were told that the bill would put victims at the heart of the justice system. It doesn't do that. We were told that the victims would have enforceable rights. They don't have those. This is an important bill. I think it's important for Parliament to take the opportunity, as provincial legislatures have, to pass their comments on and give direction to the courts and to those in the system on how they expect victims of crime to be treated, but to be honest, I don't think the bill is going to change very much in the everyday aspect of our court system, our police stations, and our victims service offices.

Before I get to that, let me talk about some of the positive things that are in here. To be honest, I'm pleased to see some of the initiatives that we started during my short time at the ombudsman's office, such as the amendments to the CCRA to let victims see a photo of the offender, if he or she is about to be released. That can be really important for people. If someone has been in prison for a long time, their appearance may have changed and you don't know whether they are coming back to your community, so it would be nice to know what the person looks like. To have access to that photo is very positive. That's one of the recommendations we made when I was at the ombudsman's office.

The ability to have that, and the suggestion Andy made about having the photo as part of the victim impact statement, but maybe doing more than that.... I think those are important, really positive changes for victims who are there to represent their loved ones. I don't think they would change anything in the sentencing process.

I think it's important to have information about immigration for victims, and there are some changes to the CCRA here. That was one of the recommendations we made as well.

I wouldn't limit it so much. The bill limits information, if the offender has been removed from the country while under sentence. I would not put that limitation on, because if the Correctional Service of Canada transfers the offender to the custody of the Canada Border Services Agency, and while they have them—it's not a quick process—the sentence ends, then the victim wouldn't necessarily be notified if the offender were removed from the country. I think some expansion there would be appropriate.

The changes to restitution are positive, although I'm hesitant to suggest that we're going to see any real, significant change in it. Restitution is really complicated and very difficult. It's relatively easy if you have a broken television or you have a computer that was stolen, but when it gets into having counselling and losing time at work—some of the things the minister talked about—the expenses are sometimes very hard to capture, if there is going to be a plea bargain, because these things happen really quickly. The court requires your expenses to be readily ascertainable.

There is a provision, and I think it's positive, that the crown can ask for an adjournment to help collect those costs, but the victim has no ability to ask for such an adjournment. I think that would be a positive amendment as well.

Having said that, restitution is very challenging. Even though there is the civil process to have the order enforced, it becomes very challenging for victims to have to go to civil court to have the order enforced.

Saskatchewan has, as far as I know, a very well run restitution program that supports victims through this process. It might be something you would want to look at.

The complaints process is a very good idea, usually not through the ombudsman's office. It allows tracking of problems. if there are recurring issues, if there are systemic issues, you can address those. In smaller jurisdictions, it can be used as an educational tool.

I think the notion that a complaints process makes a right enforceable is a bit of a stretch. The right to complain doesn't give you a right to anything, really. This is not to say that it is not a positive addition, but it really doesn't give you, I think, what the government says that would equal enforceable rights.

In a lot of the bill, with the limitations in the bill again, there are important jurisdictional issues and important charter issues to consider, so I'm not suggesting to you that the limits that are in the bill are wrong. I think if you wanted to remove those and give victims standing and let them be a party, those are bigger discussions than you'd want to have in this bill, but as long as those restrictions are in there, I don't think anyone can suggest this puts victims at the centre, at the heart of the justice system.

Let me give you one example. We've heard already about the right to be notified of the plea, and so the judge, he or she, will have to ask the crown whether they notified the victim about this plea arrangement, but the bill actually says that the judge has to ask that question after he or she has accepted the plea. Crown and defence make their submissions. The judge accepts it. At that point the judge is required to ask the crown whether they talked to the victim about this. As Andy mentioned, if the crown says no, he or she should go and do that, but if they don't, nothing really happens. Keep in mind also, before the judge is to give the sentence, he or she is required to ask the crown if the victim wants to give a victim impact statement.

There's a series of these things. The last research I saw suggested that about one-third of judges actually ask crowns if they canvass victims for impact statements. It's in the Criminal Code, and it says they shall do it, but we know they often don't. There is no remedy or fallback from that, so I think it's important as we talk about the bill of rights to put it into context.

If you really want to understand what change this bill will make, you really should be hearing from the provinces; 90% of this falls under their jurisdiction. If they were to come to you and you were to ask them—because they all have their own provincial legislation—what the difference would be in their province, my guess is they would probably say, “not much”. If you were to ask police officers, if you were to ask the crown attorneys association, how they are going to do their job differently, I'm pretty sure they would say that not really much is going to change.

On the other hand, if I'm wrong, and I've been wrong before, if they were to say, “No, absolutely a lot is going to change: as crowns we're going to have to do all these things; as police we're going to have to do these things”, the question then becomes who's going to pay for all that. We hear constantly that our crowns are overburdened, and our police services budgets are really high. I can tell you in the Province of Ontario they're undergoing a modernization process for their victims services. This bill has not come up. In fact, they are cutting some victims services, and no new money is going to be put into victims services is the message that's being given in Ontario.

Also, with the concerns about victim-client surcharge, if we get a court of appeal that comes forward and says those lower court of appeal decisions are correct, that means they'll stop imposing the victim-client surcharge. In Ottawa, we've had lower court decisions that have said it's unconstitutional, and some judges, even when offenders can pay, have chosen not to impose the surcharge. Programs like Ottawa Victims Services that exist across the province get all of their funding from victim surcharges; it doesn't come from general revenue. If there is no surcharge money, that will have an impact on how those services operate.

Quickly, I would suggest a couple of things the committee might want to consider. The minister has talked about the ombudsman's office having some kind of oversight role. I've read the bill, but I don't see the office of the ombudsman actually mentioned in the bill at all, and I think certainly for provincial jurisdiction, that wouldn't be appropriate. I know when I was there we were told in no uncertain terms we were not to look over the shoulders of the provinces.

I think if there are going to be federal agencies that have their own complaints process, I would hope that the last point of appeal for a victim would be to the ombudsman's office. If it was the RCMP or corrections, and they didn't get a resolution, they could go to the ombudsman's office. I would also hope that all the departments would report back to the ombudsman's office so that it could track the kinds of complaints they're seeing and make recommendations to the government.

I would echo something Andy said as well about those victims. In our case, in a lot of the cases in the front-line victim services, many clients who we see don't report to the police. Some 90% of women who are sexually assaulted don't report to the police. Most domestic violence victims don't report. Hate crime victims and male victims don't report to the police. If this bill were to have the kind of change in the system the government suggests it would, I think in victim services we'd be putting a lot of resources into those victims in the system, which means that those victims who don't report would be left out in the cold. I wouldn't want to see that happen.

On immigration I talked a bit about that.

I was struck by the minister's comments that the bill wouldn't apply to the military; it wouldn't apply to the military justice system. I find that quite concerning, especially given what we've heard in recent years about the treatment of sexual assault victims in the military. I would hope that if it can't be remedied in this bill, the rights and the provisions and the approach that is provided to victims, that kind of recognition, would also be given to victims in the military justice system.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Sullivan, for that presentation.

Our last presentation for this afternoon is from Boost Child Abuse Prevention and Intervention.

Ms. Kennedy, the floor is yours for 10 minutes.

[Karyn Kennedy, Executive Director, Boost Child Abuse Prevention and Intervention]

Good afternoon. Thank you for this opportunity to speak to you today about Bill C-32, the Canadian victims bill of rights.

Boost has worked in Toronto for more than 30 years to support children who have been abused. We have worked with tens of thousands of child victims to offer prevention and education, counselling, and court preparation and support.

Boost developed the first protocol in Canada to provide guidelines on investigating and responding to cases of child abuse, implemented one of the first specialized court preparation programs for child victims and witnesses, and participated in the development of Ontario's first child-friendly courtroom with a special prosecution team dedicated to cases of child abuse.

Boost is seen as a leader in the field in terms of support for victims and in October 2013 opened Toronto's first, and one of Canada's largest, child and youth advocacy centres for victims of abuse and violence.

I would first like to speak to the strengths of the bill. I believe there are a number of ways in which the bill will promote and protect the rights of child victims, and I applaud the creation of a bill that is specifically for victims and highlights victims' rights that will be enshrined in law.

The bill provides important recognition of the unique status of victims, in that victims are more than just witnesses in the criminal justice system.

lt specifically validates harms not routinely considered, such as emotional harm and the economic costs of criminal harm. Through the new victim impact statement provisions, particularly for children, the emotional harm and emotional abuse that often accompany other forms of chargeable abuse can be validated through the victim impact statement, if and when the offender is found guilty in a criminal court.

Giving victims a voice to express the impact of the crime is a critical component of the healing process. One consideration I would suggest is that there may be difficulty for some child victims in writing or reading from a written statement. ln 2012, Boost piloted a project to video record children's victim impact statements and for the video statements to be used in court. This served as an effective tool for children to be able to express their feelings honestly and in a way that the written statement did not allow.

The bill translates many current practices of providing information to victims into rights, such as information about resources and supports, the status of the investigation and prosecution, the release of offenders, as well as parole conditions and what the offender looks like at the time of release.

The bill specifically sets out that victims have a right to protection, and this includes the right to have their security considered and reasonable measures taken to protect them from intimidation and retaliation. This is particularly important in cases of sexual assault. One of the most common reasons that victims do not come forward to report to law enforcement is fear that the threats made by the offender will be realized.

ln the vast majority of child sexual abuse cases, threats are made to the child that directly relate to their own safety and security and/or that of their loved ones. Including this protection in the bill sends a strong message that their safety and security will be protected.

ln recent months, Boost has begun to see more cases involving human trafficking of young women and there is a heightened element of fear in these cases that will require special considerations with respect to their safety.

The bill states that every victim has the right to request testimonial aids when appearing as a witness. While this is important to include as a right, in my experience it is very difficult, if not impossible, for children and other vulnerable witnesses to ask for this unless a professional advocates for them.

ln some jurisdictions across the country there are specialized child victim witness court preparation programs where the needs of child victims are identified and advocated for in the court. However, where this type of program is not available, child victims cannot rely solely on judges or crown attorneys to make applications on their behalf.

I'd like to address some of the ways the bill could be enhanced to further support the rights of child witnesses. While testimonial aids are available to all child witnesses, in my experience they're underutilized because they are either not always available in some jurisdictions or because there are prosecutors who still believe that it's preferable to have the child testify on the stand without the benefit of testimonial aids.

These decisions are often made as it's felt that a witness on the stand, even if the witness is in distress, will have a greater impact on a judge or jury. As a result, we often see an underutilization of testimonial aids even if they may be in the best interests of the victim. Professor Nicholas Bala and his colleagues in their 2011 report to the Department of Justice where they examined, among other things, perceptions of the judiciary regarding the use of testimonial support provisions, found that in almost half of the cases applications for the use of closed-circuit television for children under 18 were either never or only occasionally made.

Other jurisdictions have recognized that children and certain other vulnerable groups need additional advocacy to ensure their rights are asserted and upheld. In the United States, a guardian ad litem may be appointed by the court as an additional support person who can assist children to exercise their statutory rights to special measures. They can make recommendations to the court regarding the child's welfare and access all evaluations, records, and reports regarding the child. There's also federal legislation that provides for attorneys for children in addition to guardians ad litem. Norway provides for state-funded counsel and separate legal representation for alleged child and adult victims of certain sexual and violent offences.

While the government may not wish at this point to consider the possibility of duty counsel for vulnerable victims, perhaps the flexibility to allow pro bono lawyers, law students, or even privately hired lawyers, when they can be afforded to attend hearings as advocates for victims' rights, may be feasible. It's also possible that legal clinics and law schools across the country could provide such assistance. There are already protections in the bill to ensure there's no excessive delay or interference with the proper administration of justice. Moreover, given Canada's commitment to and ratification of the Convention on the Rights of the Child in December 1991, it's arguable that more should be done now in the legislation in relation to child victims' rights.

For example, article 12 of the convention sets out a child's right to be heard. It says:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Finally, Canada, which has taken a leadership role with respect to the development of the United Nations' 2005 Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, might consider some of the guidance it provided in this area. There are several areas where children's needs as victims could be better accommodated in the legislation. The current bill provides for applications by victims for various measures available under the Criminal Code, for example, testimonial aids and publication bans, as well as the rights of victims to convey their views about decisions to be made by authorities that affect their rights. However, vulnerable victims will need support and assistance to make applications and convey their views.

Paragraph 25 of the guidelines states:

25. Professionals should develop and implement measures to make it easier for children to testify or give evidence to improve communication and understanding at the pre-trial and trial stages. These measures may include: (a) Child victim and witness specialists who address the child's special needs; (b) Support persons including specialists and appropriate family members to accompany the child during testimony; (c) Where appropriate, to appoint guardians to protect the child's legal interests.

The language used in court, particularly with child victims, must be understandable and respectful of children's developmental capabilities. There's a dearth of attention to this issue. Provincially, the law societies have not addressed this, and it's the right of child victims to understand and to be respected during questioning as victims and to be able to participate fully in the criminal justice system.

Bala also asked judges about their experiences with the questioning of child witnesses and asked them how often, if at all, they observed child witnesses 13 years and under being asked questions by professionals where they appear incapable of answering due to the complexity of questions or developmentally inappropriate questions. Thirty per cent of judges reported that defence counsel often or almost always asked complex questions compared to 23% by police, 13% by the crown, 11% of child protection workers and 8% by judges. It's also worth noting some other relevant provisions of the UN guidelines including articles 14 and 31. All interactions described in these guidelines should be conducted in a child-sensitive manner in a suitable environment that accommodates the special needs of the child according to his or her abilities, age, intellectual maturity, and evolving capacity. They should also take place in a language that the child uses and understands.

Professionals should also implement measures to ensure child victims and witnesses are questioned in a child-sensitive manner and to allow for the exercise of supervision by judges, facilitate testimony, and reduce potential intimidation, for example, by using testimonial aids or appointing psychological experts.

Again, other jurisdictions have recognized this issue as a pressing one for child victims and have made developments in response. Over the past decade, several countries, including Australia, New Zealand, and parts of the United States, have enacted specific legislation in an attempt to prevent improper questioning of child witnesses, particularly during cross-examination.

Bill C-32 offers an opportunity to recognize not only the unique needs of victims, but those of child victims of violent crime, and to provide protections and advocate for the needs of these vulnerable victims.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you very much for that presentation.

We'll go now to our rounds of questions. Our first questioner, from the New Democratic Party, is Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I too want to thank our witnesses.

All of this is extremely interesting. We had been expecting this bill for a long time. We heard a lot about it and there were also several press conferences. I congratulate you for the work you do on behalf of victims, each one of you in your respective fields.

As some of you pointed out, the success of this new charter is going to depend largely on provincial and territorial partners. In the course of the administration of justice, they will have to apply large parts of this new Canadian Victims Bill of Rights.

I don't remember exactly who talked about this, but I have to admit I am a little concerned about something. Following last week's meeting of federal, provincial and territorial ministers responsible for justice and public safety, there was a certain disappointment. Certain specific demands had been made regarding legal aid. However, they did discuss the Canadian Victims Bill of Rights.

I read the statement made by the new Quebec Minister of Justice, Stéphanie Vallée, which says: “However, Quebec like several other provinces expressed some concerns regarding the implementation of the bill as proposed.”

It was also said that there was not enough consultation before the bill was prepared. I would like to know whether, like me, you believe that the various levels of government are going to have to work in close cooperation if this new bill of rights is to work.

Aside from Mr. Sullivan who spoke about this briefly, no one has pointed out that some elements are missing from this bill. As explained by the minister and representatives of the Department of Justice, that was somewhat deliberate. They wanted to start with something. That said, this charter leaves a number of victims aside. So we have a Canadian charter for the rights of victims, but it does not necessarily apply to all types of victims.

I would like you to discuss that more in depth. The question of members of the military disturbs me considerably. Since I read several of your articles, Mr. Sullivan, I am surprised not to hear you say anything about the victim surcharge. I was not necessarily satisfied by the replies provided by the department officials. I'm not sure I understood what they were trying to do with new subsection 737(4), regarding reasonable delay.

Does this dispel your reservations about the surcharge, or do you still think that there is a legal vagueness there?

Mr. Laferrière, you worked in close cooperation with Senator Boisvenu in connection with the victims' association with whom you worked. Conservative colleagues, who could never be accused of being overly favourable to unions, may not have situated you quite accurately. You have been a passionate advocate for the rights of victims.

Could you tell us about your background?

I'll start with Mr. Laferrière, just to be precise on where he's coming from, and then go to Mr. Sullivan.

[The Chair, Conservative, Mike Wallace]

Mr. Laferrière, you have the floor.

[Claude Laferrière]

I was a pro bono lawyer for close to eight years with the Honourable Senator Pierre-Hugues Boisvenu. I was a very close collaborator and friend until last April, that is to say until I saw the document, in particular clause 20 regarding the discretionary power, which is poorly defined in connection with the rights of victims.

I understand perfectly that the police and crown attorneys have discretionary power, but it should probably be defined in the context of victims' rights. We understand it in connection with the rights of the accused, in the context of a criminal investigation, but when it comes to victims and their families, what are we talking about?

In conclusion, I will add that I am a lecturer at the University of Montreal and at Laval University in the field of national security law.

I have also a degree from Georgetown University Law Center. I spent a little time in the U.S.

I also teach business law. Currently I'm responsible for a legal research course at the University of Montreal. Some of my students are Chinese nationals from Beijing, in the People's Republic of China.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you.

What I meant is that I wanted people to situate you generally. I believe we have understood your position on clause 20 well.

[Claude Laferrière]

I am trying to be as apolitical as possible.

[Françoise Boivin, NDP, Gatineau, QC]

I understand.

Mr. Sullivan, could you reply to my two questions on the notion of “victim”?

[Steve Sullivan]

There are a couple of things I want to put to you.

If the provinces are on board, then this will have no impact at all. Quite frankly, if this bill was going to bring in fundamental change, I think you'd be hearing the provinces scream more loudly than they are now. I don't know how much consultation was done, but I think the fact that they've been fairly silent suggests that they don't really see much of a change here from what they have in their own victims bill of rights.

When I was at the ombudsman's office, I met some women in the military who had been sexually assaulted and not treated very well. There have been a lot of media reports around that, not just in the most recent Maclean's, but going back many years, so this is not a new issue. The fact these principles wouldn't apply to people in the military justice system I think is very problematic, and hopefully can be addressed in this bill, but if not, then something should be done quite quickly. I understand it operates differently.

With the victim fine surcharge, my understanding what the bill the would do is.... Some judges were giving offenders 100 years, 50 years to pay. I think this bill is intended to limit that. At the ombudsman's office I made the recommendation that it should be mandatory. Having said that, looking back, I wouldn't do that again. I think it has created a situation whereby we're at risk now of losing all the victim surcharge money. The reason I made it was that, as ombudsman, you couldn't tell the provinces to spend more. I don't think they have any intention, for the most part, of spending more, so the only real avenue was to get more money through victim surcharges. I don't think that's going to happen.

My recommendation would be that the government go back to the old system and find a hybrid system that could work and clarify what those exceptions are for people who cannot pay. We're seeing people who can't pay being ordered to pay $700 fines, and it's not working.

[The Chair, Conservative, Mike Wallace]

Thank you for your questions and answers.

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

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

Thank you to all the witnesses for your presentations.

There's certainly a diversity of approach, but certainly we'd all agree that the purpose of this legislation is to focus on the rights of victims, a piece that was neglected in the criminal justice system. I think we'd all agree also that we shouldn't let perfection become the enemy of good. These provisions are all intended to give the victims a voice, and that's the direction this government has taken.

Mr. Hooper, I was interested by your comment regarding delay. Our extensive consultations indicated that victims were very much preoccupied by delay. It's one of their major concerns. I wonder if you could explain from your vast experience why delays do matter to victims, and conversely, if you could explain why delays help criminals.

Thank you for your work with victims. It's very much appreciated, and certainly more work in that field by others will be appreciated as well.

[Robert Hooper]

Yes, thank you for the question, sir.

I'll answer backwards with the second part, why delay is important to the accused person.

Generally speaking, the right to a fair trial in a reasonable period of time is enshrined in our Charter of Rights and Freedoms. Many moons ago, with a gentleman named Mr. Askov it was decided when there were delays in the crown, the prosecution, the police, etc., on a charge, and it's now known as the ruler for delay, but when that happens, you walk free. I can't imagine being the victim of a violent crime and the only reason the person who perpetrated the crime and violated you is not going to jail or getting the appropriate sentence, whatever may be fit, is that it took x days or x months, and the only reason was a prosecutorial delay or police delay, or a systemic delay, etc. That certainly is not something the victims whom I represent support. That is in the favour of the accused. It's enshrined in our Charter of Rights, and so be it.

You'd be happy to know that Mr. Askov committed another crime and found himself incarcerated.

In any event, the second part of why it seems to be unequivocal that the victims whom I represent.... I was at a pretrial yesterday with a woman who was sexually assaulted by a fellow student at a university campus that will remain nameless, getting ready for her civil trial against her perpetrator. If you line up the times that she had suicidal tendencies and admissions to mental health facilities, they line up with the times when there was an adjournment or a delay in her case. The accused had the right; he went clear to the Supreme Court of Canada, or attempted leave. That was over a five- to six-year period. If you drew two parallel charts, you'd see that almost every time there was an appeal, or she had to appear once again and was told no because he had appealed to the next level, there was either a suicide attempt or an admission to a mental health institute. This is just one anecdote. I happened to be with her yesterday at a pretrial in Hamilton, Ontario. I asked her if I had her permission to give that example. She said that unfortunately, with the length of time this was taking in her life, it really hurt, plain and simple.

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

The trauma continues as the process lengthens.

[Robert Hooper]

She would tell you that her healing process probably cannot start until the sentencing process concludes.

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

I'm going to draw on your experience to give the committee a little bit of insight in the plea bargaining prospect. Can you give us the dynamics of how these deals take place? Could you comment also on whether you feel that this act positively influences the plea bargaining process in favour of victims in this case?

[Robert Hooper]

I think the independence of the crown and the defence lawyer both coming at a case from two different avenues is trying to essentially, rightly or wrongly, bake a cake, which is to put all the ingredients of the reasonable propensity of a prosecution being successful, the offender not being sentenced or not being found guilty.... These usually happen previous to a pretrial. Then at a pretrial, where there's often some judicial influence, can you really make the case beyond a reasonable doubt, which is a very high standard? We're less and less clear about eye-witness testimony, etc. Sometimes, albeit subjectively, it looks like a slam dunk, so to speak. There are legal hurdles that will prevent a conviction on the highest charge. I think this bill will be somewhat successful in assisting in that way, more in the plea bargains with respect to sentencing. The guilty plea is going to be the x, and there are some provisions that victims will be accommodated, or the harm to victims in the community will be more accommodated in the sentencing.

Truthfully, with concurrent and consecutive sentencing in this country, from a victim I hear “Yes, I would love Mr. and Mrs. X to be convicted of 16 counts”, but in reality in our criminal justice system, two years less a day concurrently 15 times is no different from two years less a day once, practically speaking.