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.