Justice Committee on Nov. 18th, 2014

[Françoise Boivin, NDP, Gatineau, QC]

Okay, thank you. That's clear.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner is Monsieur Goguen. You have five minutes, sir.

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

Five minutes, it is.

Thank you for all the testimonies, and thank you for your continued work on victims' rights. Certainly there has been a concerted effort by all of you to better the plight of victims.

For those of you who are victims or are related to victims, I think it takes great courage to come forward. It's only by having testimony like this that we can ensure that the bill of rights deals with victims with dignity and respect. Colouring in the picture is a big part of the solution, so I certainly thank you for that.

Ms. Mallet, I would like to ask you a question concerning the importance of the victim's statement.

During the consultations held by the minister, some people complained about delays in the system. It was said that these delays affected the rehabilitation process. According to the law, the judge may, if he considers that this will not cause injustice, adjourn a proceeding to receive a statement from the victim if for one reason or another that statement was not made.

Do you think the importance of the victim's statement justifies adjourning the proceedings?

[Dolores Mallet]

In my opinion, yes, it does.

During the process, during the time period covered by the trial, it can happen that the person did not include everything in her statement and that consequently there are gaps. If the victim or victim's representative realizes that she will not have time to remedy that, it would be good in my opinion to give them some time in order to add to the statement so that it is really complete.

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

It can be difficult for the person to fill out the statement in light particularly of all the anxiety generated by the trial.

Based on your experience, can you talk to us about cases where the victim's statement really had an important impact on the sentencing at a court hearing?

[Dolores Mallet]

I can tell you about the recent case of a woman whose daughter had been murdered. The man who had committed the murder was found 15 years later. After all of the court proceedings and all of the time that had elapsed, the woman thought that she had grieved her daughter. But there was an adjournment, and up till the last minute, she wrote out her statement and included everything she had been through. For her, the fact of being able to express that to the man who had murdered her daughter was really cathartic.

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

That is in itself a type of rehabilitation.

[Dolores Mallet]

Yes, it was really a deliverance for her. She read what she had written to us and it was excellent. Hats off to her. It was really worth it...

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

...to take the time to write that statement.

[Dolores Mallet]

Yes, there was an adjournment until the next day to allow her to finish her statement. I do believe in this.

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

Thank you.

Mrs. Rosenfeldt, 30 years of work; I mean, take this in the way it's intended, but you're almost a pioneer—not to age you—in victims' rights. I say that in the kindest fashion. Thank you for your continued work

With regard to the ability to bring a picture of the victim to the sentencing hearing, what are your thoughts on that? Does that really have an impact? Does it help in the rehabilitation of the victims? Does it help the court?

[Sharon Rosenfeldt]

By all means, absolutely.

I'll give you an example. When we went through the section 745 hearing a number of years ago—and it's a little bit different in relation to a victim impact statement—I took Daryn's picture with me. It was an eight by ten; it was in a frame; it was in the court. Now, at that particular time, we were very well supported by the crown counsel who was going to look after us going through the court system. We wanted to read our victim impact statements. It had not yet been legislated, although courts throughout the country were already allowing victims to read their victim impact statement.

We weren't allowed to because the crown counsel took his time and told us why he didn't think we should. He said the offender would be able to cross-examine us—Clifford Olson was representing himself—and he thought that would be very, very harmful for us. So we took his advice. During that whole time, I had Daryn's picture and it was close to my heart, because he was at the hearing with me. Although he was not there in body, he was very much there in spirit. When you're going to do a victim impact statement, I totally agree with that. However, if you're going to bring all kinds of paraphernalia, you have to remember that a court is a court. It's not a memorial, and you shouldn't bring in a huge picture. I think there has to be some discretion there.

[The Chair, Conservative, Mike Wallace]

Thank you very much for those questions and answers.

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

[Sean Casey, Liberal, Charlottetown, PE]

Thank you to all of the witnesses.

Mr. Waller and Mr. Gilhooly in particular focused on something that has preoccupied me as we've gone through the hearings.

Mr. Waller, you said you can't get something for nothing.

Mr. Gilhooly, you said that the law can't solve all the problems and that simply writing things down doesn't mean they're going to happen.

Here we are discussing legislative provisions when the real key to giving some meaning to what we want to do isn't so much legislative provisions as it is resources.

I want to start with you, Mr. Waller, and I'd like to focus on a couple of things you said in your brief. You talked about how the federal and provincial governments in Canada have not increased funding for victims services and rights despite a significant increase in budgets for policing. I'd just like to drill down on that. Can you give us some sense of what the present level of support is and how it breaks down? If I look over on the next page of your brief, you set a specific goal for victims as 10% of what's spent federally for policing, courts, and corrections. I'm trying to get some sense of what these numbers mean in terms of where we are now and where we need to be for a victims bill of rights to have any real meaning in terms of dedication of resources.

[Dr. Irvin Waller]

I'll quote a Justice Canada publication that says the estimated dollar equivalent of harm to victims is $83 billion. That same document talks about $20 billion being spent on police, courts, and corrections, and about something in the order of half a billion dollars going toward various sorts of victim services. You have to remember, though, that the Province of Quebec spends more on compensation than probably the rest of Canada put together. It also has professional victim services. As I say to my students, if you're going to be a victim of violence, please just cross the bridge, because you will get somebody. You don't have to wait to ask; you will get somebody who will explain to you what services are available, about restitution, how to apply for compensation, what will happen in the courtroom. They will accompany you, and they're professional people. By the way, the reporting rate to the police in Quebec is about 40%, which is 10 percentage points above the rest of Canada.

It's hard to see exactly what we should be doing, but I think we should be in line with what other similarly situated democracies are doing. I would like us to be looking at what England and Wales are spending. They spend roughly the same amount per capita as Quebec on compensation. They also spend for professional services. I think in that 10% figure is some money for prevention. One of the problems in this country is that we don't have an annual victimization survey, which we should. You're proposing legislation that you hope is a start for a better world, but you're not going to measure how it's implemented. You should be looking at the general accounting office in the U.S. which has done this.

The estimates I use come from looking at a number of different countries. They are ballpark estimates, but they give you some idea of what would happen. That would enable us to have professional people from coast to coast, as in Quebec. It would enable us to, like the State of Vermont, actually pay out restitution and then recover from offenders. It would enable us to pay the sorts of amounts that are paid in Quebec for compensation. It would enable us to ensure that victims are accompanied—the vast majority of victims won't get to court, by the way, and compensation is payable even if you don't get to court—by somebody when going through the police process, through the bail process, which is incredibly important, incredibly important, and through the trial process and of course into the parole area.

I'd be happy to give you a more detailed calculation. I just don't have all the figures with me.

[The Chair, Conservative, Mike Wallace]

I'm sorry, Mr. Casey. That's five minutes. Thank you very much for that question and answer.

Our next questioner is Mr. Dechert.

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

Thanks to each of our guests for being here today.

Mr. Gilhooly, I'd like to begin my questions with you.

You mentioned your thoughts on the duty to inform a victim regarding a plea bargain, in clause 21 of Bill C-32, and you also mentioned the testimony that we heard from a representative of the crown prosecutors service. You probably also know that the Canadian Bar Association and the Criminal Lawyers Association expressed concern that the provision that requires the court to ask if the victim has been informed of the acceptance of a plea bargain would somehow delay the court process and would be something that we couldn't allow because it would lead to too long a delay in the court process. As a lawyer, what's your response to that?

[Gregory Gilhooly]

Well, quite frankly, I think it's a joke. I gave you my personal experience having lived through it as a victim, and quite literally it would have taken 15 minutes to have kept me apprised, to have received input from me, and to have moved forward. It's as simple as that. Look, I don't have a horse in this race. So many of the witnesses have horses in this race. If you're a criminal defence lawyer, anything that makes it more difficult for you to defend a client is bad. If you're a crown, anything that takes up your time is potentially bad, you know? I'm not an NGO looking to curry favour to get funding. I'm just a guy.

So, just commonsensically, bring the victim up to speed, check in, get feedback, and move forward.

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

Fair enough.

Ms. Rosenfeldt, what is your view of the duty, described in clause 21 of the bill, to inform a victim of a plea bargain?

[Sharon Rosenfeldt]

Actually, as well as Mr. Gilhooly, I could probably speak from a personal level on the $100,000 payment. Hindsight is always great, but as victims at that particular time, had the crown and the attorney general approached the families—they knew the families were all getting together—rather than treating us in the manner that they did, and had they taken the time to explain to us that a number of bodies of other children had not been found.... In our particular case, our son's body had already been found. For the sake of being able to have disclosed by the killer where the bodies were and to take them to the locations so that the families could recover their children and have a proper burial, we would have definitely—definitely—been in favour of it. We were very new to the justice system, but had it been explained to us....

Can I just read for you what a victim said during the plea bargain?

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

Sure.

[Sharon Rosenfeldt]

It won't take long. She asked me if I could share this with you. She said:

After two years, the crown, after seeing us in court for so long—

Their case took three years, and there were five offenders.

—decided to call us in one day to explain a plea bargain that had to take place. Just being invited was a big thing for us. To be acknowledged was a big thing for us. We sat there and she put it to us very well why she was caught in a catch-22: If we go this way, here's what could happen, and if we go this way, here's what could happen, so I'm using this way, which I think is best for all. Yes, we could see it. Yes, we weren't stupid. We understood exactly what was happening. Yes, the crown had no choice. We told her she had no choice and to go ahead. I mean, we had no say anyway, but at least we felt part of it. We certainly understood her position. That's the way the law works, and we weren't happy about it, but we understood her position, respected it, and never gave her any trouble or backtalk or whatever.

The biggest thing that she said was that at least when they went into court their family knew what was going to happen.

Thank you.

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

Fair enough.

I have a question for Mr. Gilhooly.

Mr. Gilhooly, are you familiar with clause 17 of the bill, which allows, in certain very controlled circumstances, the identity of a witness to be kept confidential? As a lawyer, what's your view of that?

[Gregory Gilhooly]

It's a tool. I guess I err on the side of wanting there to be tools that can be used. If the usage of the tool is warranted, let's allow there to be the tool that is potentially used. If it turns out that the use was or wasn't appropriate, that can be viewed after the fact.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner is Madam Péclet from the New Democratic Party.