Thank you, Madam Chair.
I want to begin by thanking the committee for having us and giving us an opportunity to participate in this consultation.
The Association québécoise Plaidoyer-Victimes is an organization that promotes and defends the rights of victims of crime. It has existed for 30 years and mainly operates in Quebec.
When the bill was announced by the Prime Minister, Stephen Harper, it was presented as a first in Canadian history—a piece of legislation that would fundamentally transform and clarify victims' rights, and create a better balance between victims' and offenders' rights. His message was very powerful.
However, despite the proposed amendments—most of which we agree with—we believe that the current bill will not make it possible to achieve such ambitious objectives.
Since our allocated time is limited, we will mostly tell you about our concerns over this bill's scope and its capacity to strengthen victims' rights. We will also share our concerns about the legislation's implementation. We will submit a brief over the next few days, and we hope that you will welcome our feedback. Of course, our objective is to enhance the bill and strengthen victims' rights in Canada.
I will begin with two comments.
First, the bill's title is not the same in English and in French. We feel that the title should be the same in both languages.
Second, this bill does not cover victims' social entitlements—the right to assistance and the right to compensation. To make the message clearer for victims and the general public, the bill should instead provide for victims' rights in criminal proceedings or in the framework of the criminal justice system.
My next comments are about the rights afforded to victims.
I will first talk about rights as stipulated in clauses 25 and 29. The bill sets out rights in a general sense, as was the case in the 1989 Statement of Principle and the Canadian Statement of Basic Principles of Justice for Victims of Crime, 2003. Over the past few years, all the groups have asked that victims' rights be clarified, so that victims can know what rights are afforded to them, how they can exercise them and whose responsibility it is to enforce those rights. In that regard, Bill C-32 is disappointing. It does not go as far as the Ontario and Manitoba legislation, which is much more specific.
When it comes to the right to information, for instance, this piece of legislation contains no proactive rights. It contains only rights victims have to ask for. The Manitoba legislation lists proactive rights, rights victims can obtain upon request and rights that involve certain restrictions owing to other existing legislation and policies.
Another very important element is the fact that the obligations of criminal justice system agencies and representatives are not specified. This has been an issue for years. Our organization has participated in all the consultations, and this issue has often come up. It is important for victims to know where to turn to obtain information, participate in proceedings or obtain protection. They must also be familiar with the responsibilities of various justice system players, at various stages, and know what to expect.
Inspiration could have been drawn from the experience of other countries, such as England and Wales, or the directives issued by the European Union, but Bill C-32 does not reflect those improvements. So it will be up to the federal, provincial and territorial departments to do all that detail work. I want to point out that all provinces have disparate interpretation legislation. The definition of “victim” varies. Complementarity and consistency are being talked about, but there is a tremendous amount of work to be done in that area.
Third, discretionary rights are at play here, and they are clearly set out in clause 20. All representatives—the police, departments, prosecutors and others—have a significant amount of discretion in deciding what is or is not reasonable, what can be granted and what comes under their discretion. Numerous provisions, both in the Criminal Code and in the Corrections and Conditional Release Act, grant all those representatives discretion.
Presenting this bill as a quasi-constitutional tool meant to strengthen victims' rights indicates to victims that their rights will be taken into account and enforced. However, that is a misleading message. It fails to make the necessary distinctions and creates false expectations. Therefore, it is bound to lead to dissatisfaction among victims.
I don't think this is the bill's objective.
I will now move on to clauses 21 and 22, which concern rights largely established or defined in other pieces of legislation. It is said that this bill should take precedence over other federal statutes, with the exception of the Canadian Charter of Rights and Freedoms, as well as other quasi-constitutional laws. In Canada, declaratory statutes have rarely been tested before the courts. That has been done in three provinces. There have been three cases and, in all three, the judges came to the conclusion that the statutes had no legal force or effect.
I will now talk about recourse.
It is true that Bill C-32 provides for a remedy. This can be considered a step forward, but the step is a small one because there is so much left to be done to set out remedies. Federal entities only provide for the complaint process. A lot of work remains to be done to clarify the responsibilities of various departments and federal organizations, as well as to define the mandate of the Office of the Federal Ombudsman for Victims of Crime and its authority to act. Procedures and policies will also have to be established, so that this statutory obligation can take effect.
The problem is even more complex in the provinces and territories. As you know, the complaint mechanisms vary from one region to another, and even from one organization to another. What is the situation on the ground? Complaint mechanisms are not well-known and are rarely used. Victims do not distinguish among the organizations of different levels of government. They have to navigate through the complex organizational machinery and often receive no guidance in this process, which they experience as a re-victimization. We also note that a number of victims do not use their recourse because the system is too complex. It's a real obstacle course. We also note that many organizations do not document the number of complaints received or the follow-up provided.
There are two stages to the process. First, the organizations must report on their work to the complainants, and second, they must analyze the complaints and process them other than on a case-by-case basis. That is the work of an ombudsman. There are recurring problems with and obstacles to the recognition of the rights of victims of crime. These rights must be represented to the appropriate authorities and all levels of government. It would be complicated to determine the responsibilities in the provinces. I know that the federal Minister of Justice said that he had started working with provincial ombudsmen.
However, if you look at section 18 of the legislation on Quebec's ombudsman, you see that this individual's area of jurisdiction and oversight is limited compared with the whole legal community, if I may call it that. Consequently, many recourse-related issues are still unresolved. This is extremely important in relation to the Canadian Charter of Rights and Freedoms.
I now want to move on to clauses 27 and 28. They do not grant any rights and do not provide for the appeal of a decision or an order.
What lessons can we learn when we consider the bill's scope? There is no point in promising victims that the bill will be enforceable if their rights largely depend on the discretionary power of justice officials, and if victims cannot take action and appeal decisions. There is also no sense in promising victims they will have recourse if we cannot rely on clear and coordinated mechanisms, which have no constraining effects, and if organizations are not reporting on their actions and decisions.
I would now like to add a few comments on the restitution provided for in clause 5. That measure should be clearer and talk about the entitlement to a remedy, which better reflects victims' needs and the progress made in this area. The entitlement to a remedy includes the right to restitution of goods or to a refund of costs incurred when testifying in court, as well as the right to restitution and to restorative justice. The bill should provide a definition of restorative justice. Protection safeguards should also be added when victims participate in restorative justice programs.
Let's now talk about the amendments to the Criminal Code and, more specifically, to section 7. That provision grants the right to representation by legal counsel.
Following its review of the production of records in sexual offence proceedings, the Standing Senate Committee on Legal and Constitutional Affairs published a report in 2012. That report looked at equity and victim protection in those records. The committee very clearly recommended that victims be entitled to a lawyer. That was stated in black and white.
Clause 7 mentions the right to be represented by counsel. That term choice is not insignificant. It greatly mitigates the Senate committee's recommendation. That term was chosen because it makes the process much less expensive for the government, since no promise is made to cover the complainant's legal costs.
As for the victim's right to representation, we will certainly recommend that the right to counsel be replaced with a right to a lawyer when records are produced in sexual offence proceedings.
We will also recommend that the agreement be reviewed because it currently covers only offenders and not complainants.
I will now comment on the victim impact statement.
The bill introduces the community impact statement. We are wondering about the scope and usefulness of such a statement. We feel that this is not a priority, given the current extent of victims' needs.
We are also wondering about the inclusion of a drawing, poem or letter in a victim impact statement. Those measures could make sense in a therapeutic context, with a psychologist or a psychiatrist, but we are wondering how they can be used. Couldn't this harm victims' interests by making them more vulnerable? I could perhaps elaborate on this issue during the question period.
I have some other comments about the victim impact statement. The court or the review board has the discretionary power to grant victims the permission to convey their views about the decision. However, according to the current jurisprudence, comments on sentencing are not accepted in the victim impact statement. This remains a discretionary power of the courts, of course, but we are wondering how it will be used by them and how eligibility will be determined. We feel that there are bigger problems currently when it comes to the use of the victim impact statement. We have many concerns in that regard.