Justice Committee on Oct. 21st, 2014

[Steve Sullivan]

I don't think it will play out any differently now. In the Criminal Code now there are provisions for not criminally responsible cases where victims can do impact statements. I understand that because the person isn't found guilty of the crime in a sense they're not criminally responsible. They've done the act but they didn't have the elements to form the intent. I don't think from a practical point of view, a front-line perspective, that there's really a difference in how victims are treated. Mental Health Review Board hearings allow victims to come to hearings. They can do impact statements. I don't know if the systems work that well in all the provinces, but those provisions do exist.

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

The victim surcharge fund, I think, is a good case in point here. If the person is not found criminally responsible, it would be pretty hard to impose a surcharge on the penalty because the penalty wouldn't apply.

[Steve Sullivan]

To be honest, I don't know how that would work. I've never thought of that perspective, but it's quite possible that they wouldn't impose a surcharge.

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

The courts seem to be pointing in a direction where the surcharge simply is going to be tossed. We'll see on appeals what's going to happen over time. That surcharge looks like it's not going to be available.

Maybe, Mr. Murie, I could ask you this question.

There are a number of charities that are currently working for victims rights. If the fund is no longer funded by the surcharge are the charities able to compensate? Where is the funding going to come from?

[Andrew Murie]

When the legislation was brought in to increase the victim surcharge fund, many.... Many of the charity-based victims services organizations get no funding at all right now from the victim surcharge fund. Most of it goes to the provinces. They use it to fund their own services.

As my peers have said, there are limitations within the service provided already. Our hope was that with the increase in victim surcharge funding, which we totally supported, the system would for once become better funded, so that the provinces and the territories would have enough funding to fund their own systems and there would be enough funding left over for organizations such as MADD and Boost and other such things.

Right now we support thousands of victims in the court system each year. We get zero funding from the federal government or any provincial governments. We do it all out of charitable donations. The risk to the service we provide goes up and down based on these donations. It's absolutely critical that in victim services....

If you look at other countries, for example, my counterparts in the U.S. get the majority of their funding from victim services, basically from the federal surcharge system there. It adequately funds the system so that the U.S. can have professionals and can be guaranteed victim services throughout the country.

We're far from that. It was the hope that this would happen. It would be a terrible decision, if the courts struck these down and the victim surcharge funds stopped flowing through the system. The other thing, too, is that all of a sudden all of the great services that the provinces provide—we're talking about resources—would be gone too.

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

What would you see as a remedy, then? It certainly looks as though the courts are challenging the surcharge. It looks as if its days may be numbered.

[Andrew Murie]

I've read the Michael case, which is one of the latest ones, in which basically a street person had a victim surcharge fund of $900 imposed and is never going to be able to pay it.

What I'd like is not to have the wide discretion that judges had before, whereby they basically waived all the victim surcharge, which is fundamentally wrong, but to have a situation wherein, under narrow restrictions, judges can exempt even the minimum surcharge from being paid in cases in which the person is mentally ill, is a street person, or has no hope.... They don't even have a hundred dollars, so why impose it? I think you could do that. It would make a fundamental difference. But people who have the funds should pay, and it should be that increased amount.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

Now we have Mr. Wilks, from the Conservative party.

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

My first question is for Mr. Laferrière and then Mr. Hooper and then hopefully Mr. Murie.

With regard to clause 20, I understand your position on removing it completely, but one of the things I wanted to talk about was a Supreme Court decision, Regina v. Beaudry, with which I believe you may be familiar. It said that the Supreme Court of Canada has recognized police discretion as an essential component of our criminal justice system. It said that police have a lawful mandate to preserve public safety, undertake investigations of criminal matters, and assist victims of crime and other members of the public. It said that the police exercise their discretion in many ways with respect to whether to start, stop, or how to pursue an investigation, how to deploy their resources, whether to pursue charges, and how and when to release information to the public. It said that these decisions are made according to a myriad of considerations, including identifying risk to the public safety, availability of information and resources, and severity of the situation.

I wonder whether you could speak to how that affects this and if you could marry it to clause 22, which seems to have a caveat pointing back to clause 20. It seems to me that clause 22 has a caveat protection with respect to clause 20.

While you're reading that, I'll quickly go to—

[Claude Laferrière]

When it comes to police discretion, it's not a matter of challenging police officers' discretionary power in the fight against crime—in other words, the pursuit of an individual who will potentially be charged.

However, when we talk about discretionary power in the context of a victims bill of rights, what do we mean? That is why I asked who suggested this clause at the end of one of the paragraphs in my brief. What does it mean to define the discretionary power of the police and the Crown in the context of victim protection and rights provision?

If the legislator does not speak in vain—which is also a rule of law—and we apply this principle within the victims' rights framework, what does that mean? What does it mean for a police officer or a Crown prosecutor to exercise a discretionary power, not toward a criminal or an individual under investigation, but toward a victim?

The target is no longer the criminal or a criminal organization, but rather the victim. So what are you trying to say? In other words, I simply suggest that the legislator provide concrete examples of how this discretion will be exercised in the case of victims.

I'll leave it at that. If police officers and crown prosecutors want to hold a debate on this, they can go ahead, but they should do so outside the framework of the bill of rights.

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

Thank you.

Mr. Hooper, you brought up a good point with regard to the responsibility of notification. As a former police officer, I always felt my job was to notify the victims of where the investigation was, but once it got into the court system I didn't think it was my job any more. I thought now it had turned to either the crown prosecutor or the probation officer or whatever the case may be. There seems to be a blurred line where, if all else fails, it defaults back to the police, even though they may not have a clue about what's going on once it gets to the court process because they have a whole bunch of other things.

Do you have any suggestions on how we could clear that up from the perspective of notification?

[Robert Hooper]

Yes, it's not an on-the-fly solution but I heard that we'd have to hire more crown attorneys to make these identifications. With the greatest respect, I think it just needs to be somebody who can dial a telephone and say that the trial is next week. It doesn't have to be a crown attorney or a police officer.

My worry is the bail situation because at least in Hamilton, which I'm familiar with, and in the Toronto area the crown attorney is not assigned to the file at a bail situation, or it would be rare for that to happen. I think that is a very grave concern if there is not one point of contact that unblurs the lines, if that's the word, where you would say you're going to testify—and the police officer doesn't always testify at a bail hearing—but once the information is laid and the ink has dried that turns to the crown attorney's office. I'm not sure we could put that onto victims services because I don't think the resources are available. It certainly sounds a bit like telemarketing, but if you had a bank of phones and people were telling what happened in your case yesterday, that's just a go-forward every day. That's my quick solution.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

We have two more questioners and that will take us right to the 5:30 mark.

Madame Boivin, I'm going to hold you to your five minutes.

[Françoise Boivin, NDP, Gatineau, QC]

I will try. That's the problem with us lawyers: five minutes for a lawyer is about 15 minutes in everybody else's life.

[The Chair, Conservative, Mike Wallace]

In billing time anyway.

[Voices]

Oh, oh!

[Françoise Boivin, NDP, Gatineau, QC]

No. Speak for yourself.

Mr. Laferrière, I truly believe that you put your finger on one of the major shortcomings of the bill of rights. I think we are all happy that victims are finally receiving their due attention. They are especially happy about that, as the unfortunate events they experience will affect and influence the rest of their lives. Once the crown prosecutor and the defence attorney have closed their cases, once everyone has finished their work, victims continue to suffer the consequences of their experience. So there were some great hopes involved in this.

We could discuss this at length, but if we look at the legislation, clause by clause, we see how the provisions are drafted and how they relate to one another. Starting with clause 6, the text talks about the right to information, protection, participation and restitution. We see how the provisions are designed.

When I was studying law at university, we were taught how to draft legislative texts. Every word is important. For instance, clause 16, which has to do with restitution, states the following: “Every victim has the right to have the court consider making a restitution order against the offender.” We cannot be against virtue; that's great. This could be considered, but it does not constitute a right to restitution.

The legislation states that we have the right to protection, but clause 20, which you talked about, indicates that all the clauses I just mentioned—which have to do with various victims' rights—have to be construed and applied in a manner that is reasonable in the circumstances. That's still very vague. Numerous clauses that reduce the bill's impact follow.

A number of provisions related to recourse could lead to frustration among victims. Mr. Murie and Mr. Hooper are saying that the provinces will have to enforce the legislation in over 90% of cases. When I consider the size of our country, the number of courts in Canada and the number of crown prosecutors who will have to apply this bill, I am not sure consistency will be achieved. Do you have any advice for us on how to ensure that a victim in Quebec will be treated the same way as a victim in Saskatchewan? You talked about a system that is working well in Saskatchewan.

These are my concerns. Is there a way to improve this bill? Should we make it more binding? Would it be better to leave it as is, with so many open doors?

I think I have already used up my five minutes.

This gives you an idea of my thoughts. Are you more favourable to the bill being binding or are you satisfied with all the discretion given to the system to operate in a haphazard way? One by one, I want you to tell us whether you are favourable to the bill being binding or whether you are satisfied with the status quo.

Just say “I want it more crunchy” or “I think the system works well that way”.

[Andrew Murie]

I think that's fine. Let the provinces do their job. Some of them do it really well. Let them do it. I think you'll get a better system for victims at the end of the day.

[Françoise Boivin, NDP, Gatineau, QC]

That's good.

[Claude Laferrière]

I am favourable to collaborative federalism, as the chief justice put it in a decision on the national securities regulator or another decision. I think improvements will have to be made in terms of delay and penalties, so that potential victims' lawyers can represent their clients effectively.

[The Chair, Conservative, Mike Wallace]

Mr. Hooper.

[Robert Hooper]

Ms. Boivin, I took out part of my remarks, and it was that I'd love it, but it would be unrealistic, if we could have the same stuff in Saint John, New Brunswick, as Calgary, Alberta, but that's virtually impossible now, so hands off; let's see how the provinces go, and let's collect the things that go wrong and fix them.

[Steve Sullivan]

I think that to make it binding you're fundamentally changing our justice system, and that's a bigger debate. The key to this is resources. There's not a crown attorney or a police officer in the country who wouldn't love to do more for victims of crime. It's about resources. To make it binding, you're making victims a party, and that's a big debate.

[The Chair, Conservative, Mike Wallace]

Ms. Kennedy.

[Karyn Kennedy]

I would agree with everything my colleague said. I don't have anything to add.