Justice Committee on Oct. 21st, 2014

[Karyn Kennedy]

Yes, certainly in cases where children are involved, having an adult in that role would make a lot more sense.

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

Thank you very much for those answers.

[Claude Laferrière]

Yes, sir.

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

Okay. Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

Our next questioner, from the New Democrat Party, is Madam Péclet.

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

Thank you, Mr. Chair.

My question is for all of the witnesses, as all of their opinions are important.

I'd like to come back to what my colleague was saying about delays.

Mr. Sullivan, perhaps you could tell us more about the delays that are, in your opinion, the biggest problem for victims dealing with the justice system.

Since the charter rights are not necessarily imperative, that is to say that there is no automatic sanction if those rights are not respected, a complaint mechanism was created.

If that complaint mechanism is adopted by the provinces, to whom will the victims submit their complaints? Should the Department of Justice adopt that mechanism and receive the complaints from victims throughout Canada, or should the complaint structure be adopted by each province? Then there would be a dual system; on the one hand the victim has the right to information on the trial — on the plea bargain — and the charge, but on the other, if the victim's rights are not respected, they must complain elsewhere while the trial continues. When the victim files a complaint, the mechanism is triggered, but if the victim's rights are not respected, the trial will continue in the meantime until the end, and the victim thus stays in the middle of it all. So it is possible that his or her rights will never be respected.

How can we balance those two things? Where should the complaint mechanism be inserted? How can we insure that the victim will be able to follow the normal trial process without having to obtain the assistance of the crown attorney or an ombudsman? The system has two tracks and dual speeds; the trial continues while the victim is trying to have their rights recognized.

How can we balance that? How do you see things?

My question is addressed to all of you, since you all have interesting things to say.

[The Chair, Conservative, Mike Wallace]

Andrew, we'll start with you and work our way across. How does that sound?

[Andrew Murie]

Sure.

In some provinces now there actually is a good process if a victim has a complaint in the system. As I said in my comments, and as some of my peers have said, it really depends on the mechanism the provinces put in place to deal with these issues, because largely 90% of this will fall under provincial jurisdiction and very little will fall under federal jurisdiction.

One of the things the federal funding that's been allocated for this bill can be used for is to make sure there's some kind of standard that the federal money is used for to help in the provinces. You already have some good templates. You could apply it for those provinces that have weaker types of victims' rights, and also, for the right to complain, to put that process in place. A lot of this is process oriented and best practices, so if you can facilitate that, you're going to make it a lot better.

[Claude Laferrière]

Regarding delay and victims' rights, we had a situation in Quebec that caused me some concern. I am interested in organized crime issues. So what is happening at the Gouin Judicial Services Centre worries me. Judge James Brunton ordered a stay of proceedings in some 40 cases involving biker gangs.

I will use proof by contradiction here. If victims' lawyers in these types of cases were recognized in the justice system, they would be extremely important collaborators for the Crown. Biker wars produce many victims. We are talking about hundreds of victims. I am thinking of the SharQc and Printemps 2001 operations.

In Quebec, certain groups have started wars against other groups. A family may have a black sheep, but this does not mean all family members are black sheep. So there are victims and victims' families. In my opinion, if lawyers could represent victims in the justice system, additional pressure would be placed on defence lawyers and criminal organizations. This would help secure a conviction more quickly, instead of having to charge individuals suspected of serial murder again. The victim's lawyer would become an important player in such cases.

I am not quite answering the question, but I want to clarify that, when it comes to the complaint mechanism—the proposed administrative mechanism—I recommend a much more active operational approach. That would ensure that the crown prosecutor and police officers would no longer be alone. They would have a new ally in the victims' lawyer.

[Robert Hooper]

To answer the question about delay versus the victims' rights and those two processes going hand in hand, I agree with Mr. Murie that there are some templates available. Candidly, I think if you are weighing if we adjourn this for three months to have an investigation of whether a victim's rights were violated, that the victim wasn't told about a process, will mean there will be an application under the Charter of Rights and Freedoms and the accused perpetrator is going to potentially walk free, I think 99.9 victims out of a hundred are going to say that once again they've been revictimized and they would rather see justice done to the accused person.

Unfortunately, unless you turn back to probably before your time when the Charter of Rights and Freedoms came into play, that rule is going to be there and you need whatever it is to make a constitutional amendment these days to change that. You're going to have to enshrine something equally in the charter for victims to weigh that. There are things in the bill that aren't perfect and that allow a judicial officer or a judge to adjourn the process. I think the compromise in your question is that there may be availability, if judges choose to use it, to adjourn and to allow the victim to go and have the complaints process.

I'll echo the third thing Mr. Murie said, that although sections 26 and 27 talk about a federal body and a provincial body, as he and I talked about before this started—he used 90%; I don't know what the percentage is—most of it is going to lie on the municipalities with police officers and crown attorneys. If the provinces don't get on the bandwagon it will be difficult to have an effective complaints process. I hope the ombudsperson watches the complaints process so that we can see themes and maybe we'll be back here in a year changing some things.

[The Chair, Conservative, Mike Wallace]

I'm sorry there's no more time for anything further on that. Thank you for those questions and answers.

Our next questioner, from the Conservative party, is Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

Mr. Hooper, I wanted to pick up on some of the discussions we had on the delay. We heard that one of the suggested amendments would be—I might not use the term correctly—almost a victim veto on a plea bargain. I understand the nature of that a little bit. In my past life I was a lawyer. I think plea bargains are a complicated situation. They aren't necessarily about expediency; in fact, they aren't about expediency. In my understanding and experience, they're perhaps an assessment of the evidence and a reasonable prospect of conviction by a crown attorney. Therefore they make some kind of a deal and that could be based on the evidence. It could be based on their assessment of how the victim might testify in court. There could be a whole variety of factors.

What would you think the effect of giving a veto on that to a victim would be, meaning that matter is now going to trial? I don't think there are very many victims who would be willing to accept a plea bargain.

[Robert Hooper]

I'll try to start with the big picture. We've heard a lot about resources. I think that if we go from every case that may or may not have a reasonable proposition of conviction are all being tried every day.... Forget about the crown attorneys phoning victims and telling them the trial is next week; how about the—I'll just make up a number—600 crown attorneys that will need to be hired, and you should start interviewing today, to try these cases. With the greatest respect to victims, I can't envision a victim I've represented who said that you can have your day in court, and Joe or Jane might be found guilty of 16 counts and get a slightly larger sentence, or we're going to drop 12 charges and we're only going to plead four of them, and we're going to give a bit of a break on sentencing because the truth is that your mom's not a very good witness.

I think you're right. It is a complicated, hopefully somewhat objective process, that takes into.... I referred to baking a cake earlier. My analogy was there are tons of ingredients in a plea bargain. To pump up my profession and yours previously apparently a little bit, I don't think that crown attorneys just walk in in the morning and think “He's getting a plea bargain. He's not. She is. He's not.” I don't think it works that way. I think it's a very complicated process. There is consultation with the police forces. To be fair to victims, it's a subjective, emotionally charged situation, so giving them a veto quite honestly would bring the administration of justice to a grinding halt in my respectful submission.

[Kyle Seeback, Conservative, Brampton West, ON]

I don't think it's practical in the circumstances with all due respect to victims. I also think you're right. It would lead to an incredible increase in the trial mode in virtually every jurisdiction.

[Robert Hooper]

I think the thing we forget about it is how about the 60% or 70% of victims who leave the courtroom with a not guilty verdict, which means they were not believed. In the crimes I deal with, that sexual assault victim who takes the stand for two and a half days and is cross-examined by one of my colleagues, and on the Friday the jury says not guilty, that doesn't necessarily mean it didn't happen, but I bet you—I don't know because I've never been sexually assaulted—leaving the courtroom what they think is, “I was not believed over my perpetrator”, and that's a huge victimization in my respectful view.

[Kyle Seeback, Conservative, Brampton West, ON]

Absolutely.

Mr. Sullivan, I want to talk to you a little bit about your comment on restitution. My understanding is restitution is a bit of a complicated scenario in the justice system. I don't know it nearly as well as I would like.

Could you give me some examples of restitution? How does a restitution order or even a victim surcharge order balance out against, for example, somebody who's convicted and whatever money they may earn in prison? Can it be deducted from that? What about a civil lawsuit? Are there ranking in priorities of that? Which one supersedes the other? Those kinds of things.

[Steve Sullivan]

You're right; the restitution can be complex. It can be very simple if it was a stolen bicycle, if there was TV, and you have the bill, and that's what you're going to order.

Where it gets more complicated is in personal injury situations: there's violence; some might need counselling; there's loss of work. Even if you could present to the judge a summary of what those costs would be, if you're looking at counselling down the road, it has to be readily ascertainable, and that's challenging for many victims to get that. It becomes a really complex process.

Then there's the idea of let's say it's going to be $500. We order that. It can be part of the person's probation, but once they are done probation if they don't pay it, it then becomes up to the victim to go to civil court to try to have that enforced.

My memory's going to be bad on this, but I recall testifying a couple of years ago on a private member's bill that had some ranking as far as those who are in prison and had orders against them for restitution are concerned. I think there was a restitution victim surcharge, but I can't give you any more details than that.

I think one of the other challenges for many cases is the offender doesn't have any money. If it is extensive resources, or if the victim has a lot of injuries, and they lost a lot of work, and they maybe need lots of counselling, even if they went the civil route it really depends on what the offender has to pay. If he or she doesn't have very much, then a restitution order or anything else is just not going to be paid.

It is a very complex process. It can work. Where it works really well is when you have restorative justice encounters and dialogues where people come together—the accused, the offender, and the victim—and they work out a resolution and say how much money is going to be paid. I think it's around 80% of the time you see the money actually get paid.

[Kyle Seeback, Conservative, Brampton West, ON]

Do you have a recommendation on how to make restitution orders more effective?

[Steve Sullivan]

There's a provision in here I think that is good. It allows the crown to ask for an adjournment to get those readily ascertainable costs. I would suggest letting the victim have the chance to ask the court for that as well. I think where it would really help is if the provinces do come and Saskatchewan comes, you may want to look at their program. They have a program that helps victims enforce those orders. I think that becomes very helpful.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

[Kyle Seeback, Conservative, Brampton West, ON]

I wanted to ask about Saskatchewan.

[The Chair, Conservative, Mike Wallace]

You can ask them when they show up, hopefully.

Our next questioner is from the New Democratic Party, Mr. Toone.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Thank you, Mr. Chair.

I would like to start at the beginning by asking what the definition of a victim is, since the bill is changing that definition slightly. It would be important to reach some sort of an agreement on who will be affected by this bill of rights.

According to the bill, a victim may have suffered harm following an offence or even an alleged offence. What do you think this could mean? Corporations seem to be ruled out. Is it agreed that corporations will be ruled out once and for all? Or will corporations have rights that will take precedence under the bill of rights?

Let's begin by defining victims. Is there a consensus on that definition? Will another piece of legislation override this bill of rights?

Mr. Sullivan, would you like to comment?

[Steve Sullivan]

I'm not sure I completely understand the question, but I think it's a fairly consistent definition. It's probably similar to the one that's already in the Criminal Code, although I don't have a copy of the Criminal Code with me. There may be some other adjustments. I think if you look at the provinces, it's a similar definition to the one the provinces use around “victim”. It does try to recognize, I think, everyone who can be one. It's property damage, emotional harm, physical harm. Most definitions also recognize if someone is incapacitated or deceased. It represents their close relatives, those kinds of things.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

There's a provision here that a victim can be somebody who is a victim of an offence and somebody who is found to not have been criminally responsible. How is that going to play out?