Justice Committee on June 8th, 2021

[The Chair, Liberal, Iqra Khalid]

I call this meeting to order. Welcome to meeting number 38 of the House of Commons Standing Committee on Justice and Human Rights.

Today we have MP Alice Wong, who's replacing Mr. Moore for the first hour.

Welcome, Ms. Wong. It's great to have you on our committee today.

As members know, we'll be continuing our study on the Canadian Victims Bill of Rights.

We welcome our witnesses who are here today. As a note for the witnesses, interpretation services are available with the globe icon at the bottom of your screen. Please select the language that you would like to listen to. You can speak in either official language.

Before we go to our witnesses today, we would like to pass the operational budget for these hearings. The budget, which was distributed to all members yesterday, is in the amount of $2,550. It will serve to pay for our expenses for this current study.

Do I have the approval of everyone?

[Some hon. members]

Agreed.

[The Chair, Liberal, Iqra Khalid]

Wonderful. Thank you, everyone.

I know we're still waiting for Mr. Niemi from the Center for Research-Action on Race Relations, but we have present today, Kids with Incarcerated Parents Canada, represented by Jessica Reid, who is the executive director of programming and research. We also have the Canadian Bar Association, represented by Jody Berkes, who is chair of the criminal justice section.

I keep time for everyone, for the witnesses and for members. I have a one-minute card and a 30-second card that will allow you to track yourselves with your opening statements, as well as your questioning.

With that, we'll go to Jessica Reid for five minutes for opening remarks before we carry on.

Please go ahead. Your time starts now.

[Jessica Reid, Executive Director of Programs and Research, Kids with Incarcerated Parents (KIP) Canada]

Good morning, Madam Chair and committee.

I would like to thank you for the opportunity to speak about the importance of including children with incarcerated parents in the Canadian Victims Bill of Rights and to provide recommendations to protect their rights, support healing and ultimately help break the cycle of intergenerational trauma and criminality. After witnessing the devastating impact of parental incarceration as an educator, 10 years ago I developed KIP Canada. Currently, we are one of the only organizations in this country that specifically provide support for children who've been affected by their parents' involvement in the justice system. As a practitioner, educator and researcher, I've seen the desperate need for policy changes to better support the over 370,000 innocent children who are affected in Canada.

For decades, children of incarcerated parents have been referred to as the invisible and forgotten victims. Despite the ripple effects of parental criminality on children's well-being, economic security and developmental outcomes, these children have yet to be recognized and supported as victims of crime in Canada. However, these effects are consistent with the bill's definition of a victim.

First, we must recognize and acknowledge that parental criminality often occurs in the context of intergenerational trauma and systematic oppression, where marginalized children are disproportionately impacted and are exposed to mental health and substance-use concerns, poverty and other adverse childhood experiences that only exacerbate the effects on their well-being. Parental criminality has consistently resulted in children enduring emotional harm, stigma and isolation.

Researchers have found that one in five children are present at their parent's arrest. In many cases, children witness weapons being drawn at their parents and their homes being raided. Due to the nature of this trauma, children often experience post-traumatic stress symptoms, separation anxiety and even developmental regression. Moreover, children grieve the loss of their parents, as they have difficulty maintaining contact during incarceration because of the financial, geographic and policy barriers that currently exist.

Scholars have now identified parental incarceration as an adverse childhood experience due to the lifelong impact it has on development and well-being. Specifically, research has shown that children who are separated from an incarcerated parent before the age of 18 years old have an elevated risk of mental health concerns, physical illnesses and negative developmental outcomes throughout life. Without support, it is estimated that children with incarcerated parents are four to seven times more likely to come into conflict with the law. These highlight the importance of recognizing children impacted by parental incarceration as victims in the bill and providing effective support to mitigate their effects.

Consistent with research, our programs and supports at KIP Canada have demonstrated the impact of providing early intervention and support for the unique needs of children affected by parental incarceration in Canada that are guided by their voices and based on trauma-informed, strength-based and anti-oppressive practices. In particular, counselling, after-school and mentoring programs, peer support groups and family visits have been effective in supporting children and youth at all phases of the justice system. Overall, these supports have been instrumental in enhancing their well-being, developing protective factors, and yielding positive outcomes while reducing the cycle of intergenerational criminality.

Based on research, practice, the UN Convention on the Rights of the Child, and our youth advisory, we have five recommendations.

One, include the children of incarcerated parents in the Canadian Victims Bill of Rights.

Two, consider the best interests of children of incarcerated parents, as they identify them to be, at all phases of the justice system.

Three, amend policy to reduce barriers and enable children to maintain contact with their parents, such as by lowering age restrictions.

Four, invest in early interventions tailored to the unique needs of children of incarcerated parents.

Five, improve communication and collaboration between the justice, child welfare, education and mental health systems to increase access to wraparound support for children and families.

In Canada, every child's life and trauma should matter, yet children of incarcerated parents remain the forgotten victims. It's time for us to recognize the significance of the trauma associated with parental criminality and effectively respond by including these victims in this bill and providing the support they deserve. This proactive response would help to address the effects of intergenerational trauma, reduce systematic barriers and support the healing for the invisible victims, while being one of the most effective crime prevention strategies that our country can invest in.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Ms. Reid.

We'll now go to the Canadian Bar Association for five minutes.

Mr. Berkes, please go ahead.

[Jody Berkes, Chair, Criminal Justice Section, The Canadian Bar Association]

Good morning, Madam Chair and honourable members of the committee.

My name is Jody Berkes, and I am chair of the Canadian Bar Association's criminal justice section.

I join you today from the traditional territory of the Wendat, the Anishinabek Nation, the Haudenosaunee Confederacy, the Mississaugas of the Credit First Nation and the Métis Nation. This land is covered by the Dish With One Spoon treaty.

Thank you for inviting the CBA to participate in the committee's study of the Canadian Victims Bill of Rights, which I will refer to as the CVBR. One of the things that the CBA's criminal justice section prides itself on is that its members come from both the Crown and defence bars. As such, we can bring a unique, comprehensive perspective to how legislation is implemented in the criminal justice system.

The Canadian Bar Association, the CBA, is a national association representing 36,000 jurists across Canada. The CBA's primary objective is to improve the law and the administration of justice, which is why we are here this morning on behalf of our Criminal Justice Section.

Although the CVBR uses the term “victim”, the CBA prefers to use the neutral term “complainant” prior to any finding of guilt. Therefore, when discussing the pretrial and trial process, I will use the term “complainant”. I will use the term “victim” when discussing sentencing and post-sentencing issues.

The section supports, as a general proposition, increasing resources to allow complainants to receive independent legal advice on the criminal justice process. Independent legal advice assists proper functioning of the criminal justice process by respecting the Crown's role as an independent minister of justice and not as an advocate for the complainant, as well as the court's role as an adjudicator rather than as a party that assists the participants in understanding and navigating the legal system.

Additionally, the section supports complainants being provided information with respect to all areas outlined in sections 6 through 8 of the CVBR, with the caveat that confidentiality is needed while criminal investigations are ongoing. Similarly, the section supports sections 9 through 13 of the CVBR regarding complainant protection. For the most part, these were already dealt with through the sections of the Criminal Code regarding bail, obstruction of justice offences, publication bans, third party records applications and testimony accommodations such as screens, remote testimony and the use of support persons while giving testimony.

On the other hand, the section is concerned about expanding the role for complainants in criminal prosecutions, which can result in the creation of unreasonable expectations or conflicts between Crown prosecutors and complainants. For example, section 14 of the CVBR states, “Every victim has the right to convey their views about decisions to be made by appropriate authorities in the criminal justice system that affect the victim's rights under this Act and to have those views considered.”

The Crown's legal and ethical obligation is not to secure a conviction but to ensure that all relevant facts are placed before judge and jury so that justice may be done. Therefore, the Crown must be allowed unfettered discretion in choosing how to prosecute offences. Similarly, decisions on whether to continue or to withdraw prosecutions must remain within the Crown's discretion. While it is appropriate to solicit a complainant's views on procedural issues and in determining whether to continue a prosecution, the Crown cannot be bound by those wishes. This operates the same way regardless of whether the complainant's desire is to continue or to withdraw a prosecution.

The section acknowledges that the CVBR requires the Crown to discuss and inform complainants about trial applications. However, we voiced concern about the amendments to the Criminal Code in Bill C-51, which granted standing to complainants for certain trial applications in sexual assault prosecutions. The addition of a third party with a right to make submissions about the law is problematic for two reasons. One, it has the potential to create friction between the Crown—the party in charge of prosecuting offences—and the complainant, who would likely be the main Crown witness. Two, it has the potential to complicate and lengthen pretrial applications as well as to cause mistrials, which squander judicial resources.

In summary, the CBA criminal justice section welcomes additional resources to support providing complainants with information and assistance in the criminal process. On the other hand, we suggest that prosecution decisions, including responding to legal arguments, be left in the capable hands of Crown prosecutors.

Madam Chair, I know I am out of time but I hope you can indulge me for a few more seconds. This is my third appearance before this committee, and I want to thank you for the opportunity. I have found your questions thoughtful and engaging, and I wish every Canadian had the opportunity to experience their democracy in this way.

Last, I want to thank each and every member of the committee staff and technical support. All of you exemplify the highest standards of professionalism.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that, Mr. Berkes. You didn't go too much over time, and I appreciate that.

I've just been notified that the Center for Research-Action on Race Relations, represented by Mr. Niemi, will not be able to make it to the committee today. Mr. Niemi has offered to send in his speaking notes. Now, if members agree, we can append those to today's evidence.

I'll see a thumbs-up if that's okay with members.

That's great. Thank you, everyone, for your understanding and your co-operation.

Now we'll go into our first round of questions. I believe we are starting with Mr. Lewis this morning, for six minutes.

Go ahead, Mr. Lewis.

[Chris Lewis, Conservative, Essex, ON]

Thank you very much, Madam Chair.

Thank you to both the witnesses. It was incredible testimony once again. The testimony and the witnesses who come to our committee never cease to amaze me. Thank you both.

My first two questions, through you, Madam Chair, are for Mr. Berkes.

Some provinces provide legal advice to victims of sexual assault. Do you believe the Victims Bill of Rights should include specific rights for victims of certain kinds of offences, such as sexual assault?

[Jody Berkes]

I think more information is better. All participants in the justice system should receive comprehensive information about their rights and responsibilities, regardless of what offence they either face or are involved in as complainants.

I don't know if we need to single out any specific offences in the Victims Bill of Rights. I know that certain funding should be prioritized to deal with offences that are particularly difficult in nature, are complicated for complainants and have historically been gendered.

To answer your question, no, I don't think we need to specifically designate that. I think the decision can be made when creating priorities for funding and resourcing for complainants in criminal offences.

Thank you.

[Chris Lewis, Conservative, Essex, ON]

Thank you for the answer. Again through you, Madam Chair, to Mr. Berkes, I have a follow-up to that.

Should a right to counsel for victims in certain cases be integrated into the Victims Bill of Rights? If so, how would you see that operating?

[Jody Berkes]

I might be able to respond to that.

Certainly, any complainant in any criminal matter always has the right to retain counsel. There is no restriction on that. The question boils down to who is going to pay for that service.

Though I am a criminal defence lawyer, I often provide independent legal advice to complainants in various matters, such as financial crimes, domestic crimes and various other offences. I provide them with comprehensive information on what their rights and responsibilities are. I find that it assists them very much in understanding these systems, which can be confusing, overwhelming and sometimes scary, for both complainants and defendants.

I think your question focuses in on who is going to pay for that. If we give a right to that, then that right has to be funded. Is that going to be funded at the federal level or the provincial level? At this time, there are various provinces that fund clinics. I, for one, and on behalf of the CBA, welcome additional funding.

I don't know if you have to give a specific right to counsel, since that right already exists and no one is looking to take that away.

Thank you very much.

[Chris Lewis, Conservative, Essex, ON]

Thank you, Mr. Berkes.

Again, through you, Madam Chair, this is going to be for Ms. Reid or Mr. Berkes. I would like to get Ms. Reid's opinion on this question, please.

It is important that victims across Canada are able to assert their rights, no matter where they live.

I'll open this question again to either one of the panel members. Do you have any feedback or suggestions on the ability of victims to assert their rights based on where they live or their identity?

[Jody Berkes]

Thank you, Madam Chair. I'll just give some brief remarks.

I think a pan-Canadian strategy.... The role of the federal government, as with all justice issues, is to sit down and develop best practices to ensure that comprehensive information is being provided to complainants throughout the country and that a complainant's information is not compromised depending on where he or she lives or what his or her background is. It should be available in as many languages as we can translate it into. A model can be put out by the federal Department of Justice and then disseminated with best practices.

Thank you.

[Chris Lewis, Conservative, Essex, ON]

Is there a need for greater outreach to tailor programs and policies to better meet the needs of victims in specific communities?

That is for Ms. Reid.

[Jessica Reid]

I absolutely believe that we need to be investing in diverse outreach strategies, so that we can connect supports and resources for all victims, however one defines victims, and to be inclusive, so that we can help to connect them to the supports needed.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I have a point of order, Madam Chair.

There was no interpretation during Ms. Reid's testimony because the sound quality was poor.

[The Chair, Liberal, Iqra Khalid]

Thank you for that, Mr. Fortin.

Mr. Clerk, are we having any challenges with the sound or the interpretation?

[The Clerk of the Committee, Mr. Marc-Olivier Girard]

Yes, actually. I will be conferring with the technician, but yes, the sound from this witness is very low and difficult. I will ask the technician to get in touch with her.

[The Chair, Liberal, Iqra Khalid]

Perhaps we can first try again.

Ms. Reid, please repeat your answer, speaking very loudly and clearly. I'm sure there's a boom on your headset. Try again, please.

[Jessica Reid]

I think we need to invest in diverse outreach strategies, so that we can connect and be more inclusive with all victims in order to help connect them to the supports needed.

[The Chair, Liberal, Iqra Khalid]

Was that okay, Mr. Fortin? I heard the interpretation coming through that time.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I don't think the sound is very good.

Does Ms. Reid have a headset with a microphone? I don't know where her microphone is, but that would help us hear her more clearly.

[The Chair, Liberal, Iqra Khalid]

Yes, so the technician—

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

The sound is bad even when you listen to the floor channel. I think Ms. Reid's remarks are interesting and important, but we can't hear them very clearly, and the interpreter is finding it hard to do her job.

[The Chair, Liberal, Iqra Khalid]

I understand. The technician will be getting in touch with Ms. Reid.

Next I have Mr. Maloney.

Mr. Maloney, do you have specific questions for Ms. Reid to start off with?