Justice Committee on Nov. 6th, 2014

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

Okay. If we could get back to our learned colleagues who were addressed, Mr. Dechert brought up some jurisprudence. I think it would be fair for you to have an opportunity to comment on those. When it comes to clause 17, do you have any more comments on what Mr. Dechert brought forward?

[Eric Gottardi]

Not really. I'm intimately familiar with the Vancouver case. It was lawyers from our defence team in the Air India case who argued that case. It's a case that really doesn't have anything to do with what's proposed in this bill. It has to do with terrorism offences, and the investigative hearings, and the open court principle and freedom of the press. I looked at it after I saw the intervention last time, during the last hearing, and it's not particularly helpful.

There are cases from the Ontario Court of Appeal and the Alberta Court of Appeal that do talk about witnesses testifying under a pseudonym, the consideration of whether or not the accused...and it's usually in cases where the accused actually knows who the witness is. They may not know their actual formal name, but they're familiar with them. They've had interactions with them, so the accused basically knows who the person is. They have some information about the person, so it's not practically impossible to cross-examine in that situation.

Clause 17 contemplates at least the possibility that the accused and counsel for the accused and the crown might have to cross-examine or direct examine a witness when they have no idea who the witness is. I haven't found a single case that talks about that, and I can't imagine a scenario, short of life and death and someone essentially amounting to a confidential informer, where that kind of process would pass constitutional muster.

[Eric Woodburn]

I have nothing more to add.

[The Chair, Conservative, Mike Wallace]

You have 30 seconds.

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

Very quickly, on community impact statements, you brought a point that was very interesting. Could you elaborate? I'm just worried that “community” is poorly defined. How are communities going to know to come forward?

Do you have any more comments on communities?

[Lianna McDonald]

To your last point I can't be specific about that definition and so forth. I can just speak to our issue and what we do see.

When we look at the two types of crimes we primarily deal with.... And one of the biggest challenges we deal with daily is, as I mentioned, that in much of the imagery of child abuse we process we don't know who the victims are. We have a whole problem of even including when we have people going before the courts and looking at the impact when we can't even identify those victims because...maybe they have been charged with possession of material on their hard drives. So we have that.

But the other point I would like to make, and the one we have talked about mostly within our 30 years of doing this work, is when we see some of the most—and they are very rare—high-profile child abduction cases where children are taken and there's a duration before the child's even located, we've heard from friends of the victim, immediate family members, neighbourhoods completely impacted and traumatized by that event.

I think when we look at community impact and that consideration, from our agency's view it's an important one.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner is from the Conservative Party, Mr. Wilks.

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

Thanks, Chair, and thank you to the witnesses for being here today.

Ms. McDonald, I'm very familiar with the Hopley case. I'm from Sparwood. I have had, shall I say, the honour in my old profession of arresting Mr. Hopley several times so I know him intimately and there are some interesting things about Mr. Hopley we could probably share.

Ms. Illingworth, I have a few questions for you, and then to Mr. Woodburn, and then a comment at the end.

I'd like to get a better idea of some of amendments you're putting forward because to me some of them seem a little problematic from a police perspective. I'm retired from the RCMP.

Give me an example of a letter of apology that you would want the police to sign with regard to the victim.

[Heidi Illingworth]

I guess there could be different circumstances where an apology might be necessary. I'm thinking of a lot of sexual assault complainants who come forward and perhaps their allegations are deemed unfounded originally at the moment they come forward, but perhaps later on other victims might come forward in the same case, and then a case does proceed against an accused.

I think it could have to do with treatment on an individual case. People want to be believed when they go to the police to report sexual violence. Sometimes they are not respected when they do that, when they go. Perhaps they are not provided with a support person when they are going to have to give a video statement.

Obviously it would be the service itself or the complaints mechanism that would decide if such an apology letter was ever required, but I think it's something we can do for victims.

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

From the perspective of the RCMP anyway there is a mechanism in place so that if a person is a victim of crime and then doesn't believe the police have done their job in a proper manner, they can lay a complaint through an appropriate agency to have that dealt with. It does exist from the perspective of an investigation on the police.

Further to that, you had mentioned in your statement, protection from intimidation and having the police be able to deal with that. Again, please give me an example because the way I dealt with things in my tenure was if I arrested X for assaulting Y that person was released either on a recognizance and/or an appearance notice—probably not an appearance notice, promise to appear or recognizance—or in some cases before the judge who would put conditions on that person whether it be a no contact, whether it be a lot of those things.

If the conditions are in place, is your suggestion that the police, if they know those conditions, would need to act on those conditions regardless of whether the victim says anything or not? Under most circumstances the police would never know until the victim comes forward and says there's been a breach. Then the police under normal circumstances will act on that breach, but most of the time they don't know about the breach.

[Heidi Illingworth]

Certainly. I think the point is about communication and about victims being able to raise their concerns when they encounter such problems. They should get a response from an agency around their concerns. That is our point.

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

I have one last question to the crown vis-à-vis the defence.

[Voices]

Oh, oh!

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

As you're aware, in British Columbia police do not lay the charges. The crown lays the charges. In Alberta, police lay the charges and the crown doesn't lay the charge. It becomes problematic for the police from the perspective of when they lay the charge as opposed to when the crown lays the charge.

My question is with regard to keeping the victim notified. In British Columbia, I would think the hand-off would be as soon as the charge is laid. It would then go the crown, because the police have done their investigation. But if you look at Alberta, it could go all the way through, because it's the police who lay the charge.

Do you have an answer to that? It seems to be problematic in regard to how the victim is kept in light of the investigation, because there can be a difficulty in, shall we say, the hand-off from the quarterback to the fullback.

[Eric Woodburn]

Well, I can say that the police reports are the first point of contact. Nova Scotia is a police charge jurisdiction, but I know that in other jurisdictions, such as B.C., the crowns handle it. New Brunswick is the same.

But no matter what, the police are the first point of contact. In my experience at least, they are always the first to recommend and hand over the victim services numbers, the numbers to call, and to explain the process to any victims they come across. The first point of contact is the police.

On the major crimes, it has been my experience that the police remain that point of contact until the file is actually turned over to the crown. If it's a crown charge area, they work together, and eventually the two will meet the families and so forth. That's in the higher-end crimes.

At the lower end, and I don't mean to break it up that way, but with assault causing bodily harm, we kind of run those through. This is where you are going to run into this kind of problem. Once again, the police are the first point of contact, from victim services right through to a victim impact statement. All those things are given as information first-hand, and then when the crown turns it over, it's usually right in our crown sheets. So the crowns are already informed that some of these things are already done, along with information on how to get a hold of them normally.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

The next questioner is from the New Democratic Party.

Madam Péclet.

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

I am accepting a challenge here. I am going to take advantage of the fact that I have the opportunity to speak to several lawyers at once here, and of the fact that this may be the first and last time where I will be able to do so without charge. That was a little joke, to start. I should add that I am also flanked by two lawyers

My first question is for the Canadian Bar Association representatives.

In part V of your brief on Bill C-32, you talk about the victim impact statement form, considered in sentencing. You propose that certain parts of that form be withdrawn, those that would allow the victim to express in writing the type of sentence they would like to see handed down to the accused.

I would like to hear your rationale for that. You say it is redundant, but would it not allow the judge to explain certain aspects of the system to the victim? For instance, if victims ask for a certain sentence, the judge could tell them that he understands, but that jurisprudence has to be taken into account. He could provide examples and explanations.

Aside from the redundancy issue, what was your reasoning on this?

[Eric Gottardi]

I think what you're referring to in our submission is a reference to a small notation on the standard form that's recommended in the bill. This portion of the form essentially says that with the permission of the judge, the victim can comment on the type of sentence the person should get. That's just a little detail that's tucked away on the form that I think some might have missed.

As the law stands now, a victim is not allowed to comment on the type of sentence that he or she thinks the accused should get. The focus of the victim impact statement is in fact on the impact on the victim, physically, emotionally, and every way possible, and how it has made their life more difficult. That's what the judge needs to take into consideration when they're coming to the appropriate form and quantum of sentence.

It's not something that's been permissible up to now, and in my experience it's really not something that will be particularly helpful. The judge, the crown, the defence—they're experts in what the jurisprudence will tell them about what the appropriate range of sentence should be. Ultimately the judge is the arbiter of where the quantum comes down.

Again, I think it has the possibility of raising expectations on the part of victims. If someone asks for eight years in prison and the person gets four because that's what the case law says, that victim may not be particularly happy about that.

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

Yes, but I don't think just writing what she expects will raise expectations. I think it's the job of the judge to explain why they gave that judgment.

I'm sorry, I don't have a lot of time. I have five minutes, and I like to keep my time at five minutes.

You haven't had a chance to talk about the community. Could you just give me an example of what you would maybe define as “community”? Or what would you like to see? Right now we don't know what the community is, and I know that a lot of organizations have said that they don't actually know what it is.

What would you like to see? You haven't had a chance to explain your thoughts on that.

[Eric Gottardi]

The community impact statement hasn't necessarily been a focus for us. I think there are questions about how to identify what the community is and who will be the community spokesperson. Are we talking about the neighbourhood community Block Watch? Are we talking about the city? Are we going to get a community impact statement from the mayor of Richmond, British Columbia?

So I don't know what that means, and I don't know—

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

But do you personally have an opinion?

[Eric Gottardi]

It's hard to deny that crime within a particular community, especially high-profile, very violent crime, has an impact not only on the immediate victims and their families but also on Canadians' sense of safety within their own communities and that kind of thing.

For the particular task that the judge has to do in terms of the individualized sentencing for that offender, I don't know how particularly useful it will be in every case. It may be that in some cases there's a particular impact and it's particularly relevant, but as a matter of course I have some doubt about how useful it will be to the actual calculus and analysis that a sentencing judge has to do.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

Our final questioner for today is Mr. Calkins from the Conservative Party.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Chair.

I hope you were saving the best till the last.

[The Chair, Conservative, Mike Wallace]

Absolutely.