Justice Committee on Oct. 21st, 2014

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

You touched briefly on the victim impact statements, and you touched also on this new concept of the harm to the community. As you know, in section 718, the sentencing principle of the Criminal Code, a fundamental purpose of sentencing is provided. It's an overarching philosophy of sentencing that helps to interpret the objectives of sentencing. Bill C-32 will add an explicit reference in proposed paragraph 718(a) to harm done to victims or the community. This will make it explicit that the objective of sentencing is not only to denounce criminals, but also to recognize and denounce the harm done to victims.

Could you comment on this provision?

[Robert Hooper]

Yes. When I look at the provision, it appears to me to give specific deterrence, which is already a sentencing principle in this country, a little more girth or a little more teeth. I envision, and this will depend on the judiciary in this country, that there could be sentences that now say, because of the conduct, this is how this has affected and harmed this specific victim. Even more generally, to use human trafficking as an example, they could say, “You are running a pimping organization out of Motel 6 on the QEW, and that's harmful to our community; therefore, the norm is three years and you're getting four years.”

It is certainly a hammer that could be used. I welcome it. I think “specific deterrence” is sort of a wishy-washy term; “general deterrence” is not very specific. This really says let's look at what the victim impact statement says; let's see if we should increase the sentencing. That's how I propose, or hope, it gets used.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Our next questioner, from the Liberal Party, is Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you to all the witnesses.

Mr. Sullivan, your comments resonated particularly with me, in that I share your view that the bill is as good as far as it goes, but that it has been oversold. I share your concern as well that because of the dual responsibilities and roles between the provinces and the feds, the real measure of its effectiveness is going to be in the resources that are allocated probably at the provincial level to give these rights some teeth, these rights to information and the right to complain.

Can you give us some sense...? You were quite clear in your testimony that you don't think much is going to change, but that if you're wrong, we're looking at a big bill. I should also point out that three of the five witnesses referenced the role of the provinces here, so this is something that I think we're going to be grappling with as we go through this study. I want to deal with that awful hypothetical that maybe you're wrong, and that there is going to be some significant role in terms of providing resources to give teeth to the complaint provisions and the information provisions. Can you give us a sense of what the resources would look like, what the financial commitment would need to be, on a practical level?

I have one last thing before you answer that. You said that you hoped we would hear from provincial attorneys general. We've invited them; they're not exactly jumping at the opportunity to take your seat. If you have any sway, we do want to hear from them, and we have invited them.

[Steve Sullivan]

If I had more sway, then victim services would have a lot more resources.

First, I'll say this. One of the dangers in over-promising when it comes to victims' rights, and there's some research that supports this, is that if you tell victims this and you raise their expectations, and then they go into a system and those expectations fall very short, it's actually worse than doing nothing at all. Again, I'm not opposed to the bill. I'm not saying people should vote against it. I just think the rhetoric has to be realistic.

If it is realistic—and my kids would tell you I'm wrong all the time, so it's not unreasonable that I'm wrong again—then you're going to have crown attorneys spending a lot more time with victims, which means that you need crown attorneys in court as well, which means you're going to need more crown attorneys. Crown attorneys associations, I think, will tell you they already need more crown attorneys to keep up with that, and that's been with the different bills before Parliament where they've testified to that consistently.

[Sean Casey, Liberal, Charlottetown, PE]

We've invited them as well.

[Steve Sullivan]

I think that's great.

If you're going to require police officers to spend more time with victims—and it's not that they don't want to do those things—then you're going to require more police officers. I can tell you that in Ottawa and in Toronto we hear all the same things about police budgets. I think even the federal government has talked about the police budgets, that we have to get a handle on those, so we're probably going to see those shrink, not grow. If there's a lot more work in this with police and victims, then you're going to have to have more police officers.

In Ottawa, for example, at our crown attorney's office, we have a program called the victim/witness assistance program. It's in every jurisdiction of the province, and I'm sure they have something similar in most jurisdictions across the country. That's an office that works with victims when cases are before the courts, and it helps keep them updated about the dates and those kinds of things. They're limited to pretty much domestic violence, sexual assault, homicides, some elder abuse, and some trafficking, but they just don't have the time to deal with all those other victims. For impaired driving victims, assault victims, non-domestic assault victims, they don't have the resources and time to deal with those people now, even under the province's victims bill of rights. If this bill is going to put more work on them, then they're going to need more people as well.

If I'm wrong and the minister is right that this is going to have some kind of fundamental change, it's going to mean a substantial increase in resources for crown attorneys, police, victim services, and everybody in between to make sure you can actually do what you're promising you're going to do.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Laferrière, you submit that clause 20 should be withdrawn. I think that the changes you have proposed will really be quite significant for our justice system.

Do you think we should amend the charter?

[Claude Laferrière]

I will answer in two parts.

If the legislator decides to maintain clause 20, its substance would certainly need to be more specific, so as to describe precisely what the discretionary power of the police and Crown consists of with regard to victims. We know what it is in connection with the accused, criminals, terrorists, and organized crime. In those cases, a discretionary power is necessary.

In the case of victims, it is comparable to clauses 28 and 29; there is no recourse. It has been said that the charter offers no recourse. Why were clauses 28 and 29 included, as well as clause 20? If legislators wants to hold a debate on the immunity of the police and the Crown, I think they should do so in a distinct framework, a separate one, and not in a charter on the rights of victims. In my opinion, there is no causality there.

As for the second part of your question, there was a symposium in 2012 in Quebec. The City of Quebec is a Conservative arena in this field. The senior organizer, who did absolutely splendid work, was the former Attorney General and Minister of Justice of Quebec, Mr. Marc Bellemare. At the Classique Hotel, in Quebec, more than a hundred victims were convened and a workshop was held on the charter. This seminar was presided by Senator Pierre-Hugues Boisvenu, who did excellent work, by the way. I was assisting him. My role was to be the legal counsel.

What came out of that seminar is that the victims would like the help of a lawyer. That lawyer would play all of the roles that Mr. Sullivan discussed. His role would really be to guide the victims throughout the process and to make representations at all stages of the criminal trial before the judge and jury.

[Sean Casey, Liberal, Charlottetown, PE]

So that lawyer would play an active role in court.

[Claude Laferrière]

Indeed, there could be plea bargaining, or an appeal. This is not only my personal opinion. It is what came out of the symposium, and there was a consensus.

The Hon. Christian Paradis was there as a guest of honour, as well as Mr. Bertrand St-Arnaud. In my opinion, this reflects Quebec's position on the victim dossier.

That said, the reason I am here today is much more circumscribed. In a very targeted way, my purpose was to discuss clause 20, and specifically what is meant by the discretionary power of the police and of the Crown regarding victims.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner is Mr. Dechert from the Conservative Party.

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

Thanks to each of our guests for being here today.

Ms. Kennedy, I want to start with you. It's good to see you again. I'm a big fan of and believer in what you and your colleagues do at the Boost centre in Toronto. I've had the opportunity to visit on several occasions and I think it's a model that we need to follow across Canada. I know that Mr. Seeback agrees with me that the Peel region needs a centre like Boost, and we're hopeful there will be one soon. I think all the other MPs from the Peel region feel the same way. We thank you very much for your leadership and for the way you're helping child victims in your centre.

I know that you followed the development of the victims bill of rights and you were part of the consultation process with the Minister of Justice. I want to ask you specifically about some of your comments. In your opening comments, I'm not sure if I got it right, but I think you said you were concerned about the ability of child witnesses to testify both in trials and in victim impact statements through some means other than in person in the courtroom. My understanding is that the victims bill of rights does provide for that.

Do you agree with that or are you happy to see that?

[Karyn Kennedy]

I do agree, and the Criminal Code allows for the use of testimonial aids. My concern is that they're not being utilized as fully as they need to be. Children are particularly vulnerable as victims and witnesses in the criminal justice system, and there are additional things we can do to make it easier for them to be able to go through the justice process. We can't just think of them as small adults. They are not. They have unique needs, as I've discussed, with regard to their ability to give their evidence, their ability to provide victim impact statements, and just how they interpret and understand the criminal justice system.

I think there is a good foundation here for what can be provided, but I think there's more that we can still do.

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

The victims bill of rights does say specifically that victims have a right to testify either behind a screen or through some other device, like a video. When I visited your centre you had a special room that was very child friendly with hidden video cameras in it. You get statements from children right after the event of whatever has happened to them. That's the sort of thing you're talking about, I assume, and allowing that to be used in the courtroom.

What other kinds of testimonial aids are you referring to? Can you give some examples?

[Karyn Kennedy]

Certainly I can't speak for the whole country, but across Ontario there are courthouses that don't have closed-circuit television equipment available. Often prosecutors and judges are reluctant to bring it in because it's cumbersome and expensive, that kind of thing.

I think there has been progress made in terms of offenders in custody being able to appear in court through the use of technology. We have the basis of that, I think, with the advocacy centres. There are facilities for children to provide their statements to police during forensic interviews. I think we could even take that further. As we demonstrated in our pilot project, we could record victim impact statements using video so the child doesn't have to go through that experience in court in person, as well as even providing their testimony from another location via technology.

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

It seems to me that the victims bill of rights does support that.

[Karyn Kennedy]

Yes, I agree.

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

Okay.

Now, in terms of the victim impact statement provisions themselves and the new features that are in the victims bill of rights, are there things about them that you like?

[Karyn Kennedy]

I like the fact that there is now a standardized victim impact statement. In Ontario the questions that were included previously in victim impact statements for children made no sense—you know, asking children how many days of work they missed and things like that. They didn't have a way to understand those questions or respond to them, and it just wasn't getting at what the impact of the crime had been on them. I think this is much better.

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

How do you feel about the provision regarding the release of a picture of the offender to the victim when the offender is released?

[Karyn Kennedy]

I think it would be helpful if we saw sentences where offenders were actually incarcerated long enough for them to look different. Unfortunately, we don't see the kinds of sentences in child sexual abuse and child physical abuse cases that we would like to see, but I think the more information that's available to the victim and their family, the more helpful that is.

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

As you know, the government has introduced another bill, the strengthening of penalties for child sexual offenders act, which is Bill C-26. It will be before the House of Commons very soon. Hopefully you'll come back and appear before the committee when we study that bill.

[Karyn Kennedy]

I'd be happy to.

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

Do you agree with the victims bill of rights provisions that designate another person to view the picture if the victim doesn't want to view it or if it would be harmful for the victim to see it?