Justice Committee on June 8th, 2021

[Senator Pierre-Hugues Boisvenu, Senator]

I would just like to add a comment about the concept of provincial reciprocity...

[The Chair, Liberal, Iqra Khalid]

I'm sorry, Senator. The member is out of time. Perhaps you could make your comment in the next round of questions.

We're going to start with Monsieur Fortin.

[Senator Pierre-Hugues Boisvenu, Senator]

Okay.

[The Chair, Liberal, Iqra Khalid]

Thank you very much.

Monsieur Fortin, please go ahead, sir, for six minutes.

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

Thank you, Madam Chair.

Senator Boisvenu, I'd be glad to give you some time later to tell us about your thoughts on this matter.

First though, I have a question for Dr. Wemmers.

Dr. Wemmers, I liked the four subjects that you presented, particularly the fourth. It's about strengthening the mechanisms and their implementation.

In your view, are the services currently available from the Federal Ombudsman for Victims of Crime adequate and appropriate for dealing with the various situations? Should changes be made? Should certain responsibilities be transferred to another victim assistance service?

[Dr. Jo-Anne Wemmers]

Thank you for the question.

I believe that the ombudsman is doing very good work, and the fact that this position was created is wonderful. However, as Senator Boisvenu said, and as was mentioned in the ombudsman's report, it's important to centralize complaints. Complaints can currently be made to several different authorities, and it is therefore difficult to get an overview and identify gaps.

If all the complaints were sent to the ombudsman's office, it would help us identify the problems, priorities and areas to work on. It would therefore be important to do that.

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

It would be a good idea to send all the complaints to the ombudsman's office. However, based on your experience, should funding for this office be increased so that the ombudsman can hire more staff? I have the impression that the ombudsman is somewhat overwhelmed with the work to be done from coast to coast, as we often hear in the House.

What do you think?

[Dr. Jo-Anne Wemmers]

The ombudsman's office definitely should be provided with more resources. If we assign more tasks to the office, then more funding it would be required to get them done.

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

Right.

I'll move on to another topic, Dr. Wemmers.

Like Senator Boisvenu, you said that sections 27, 28 and 29 should be deleted from the Canadian Victims Bill of Rights to enable victims to have recourse when their rights are violated.

What recourse do you think victims should seek in a specific situation where a right has been violated? Would victims have the right to appeal a decision against the accused? Do we want victims to be able to ask for restitution from the accused or from the government in certain instances?

What specific forms of recourse do you feel are worth pursuing, but to which victims do not currently have access because of sections 27, 28 and 29?

[Dr. Jo-Anne Wemmers]

Thank you for your question.

There are many examples of recourse in other countries. In the United States, for instance, each state has its own bill of rights, some of which are enforceable. This is interesting, because, like Canada, the United States uses the common law system, but their system includes enforceable rights.

For example, in the state of Oregon, there is a form of recourse called mandamus, which is also in the Criminal Code of Canada…

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

It's also in the Quebec Civil Code.

[Dr. Jo-Anne Wemmers]

That's right.

I'm not a legal expert, but rather a criminologist. I think that the experts might have more to say on this topic, but it's interesting to see what our neighbours do. In the state of Victoria in Australia, they are working on the possibility of creating enforceable rights.

There are several models in the common law system that I think we could learn from.

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

Then according to your suggestions, if a victim had recourse to mandamus, a legal advisor at the office of the federal ombudsman for victims of crime would seek this recourse on their behalf. Is that it?

You give an example of a victim who did not have access to interpretation services, which strikes me as very apt. When that happens, the victim in the room is treated as a spectator, doesn't have a right to interpretation services, is not represented by a lawyer, and cannot intervene in the process. That's not what we want and it's not reasonable.

In a case like that, how can people have their rights recognized under the bill? For example, should the ombudsman send a lawyer to every courthouse to handle the various requests when they arise? Do you have a scenario in mind on how to go about this or is that something that still needs to be determined?

[Dr. Jo-Anne Wemmers]

At the first discussion about the bill, I submitted a brief on this topic. In the brief, which I would gladly send you, I mentioned some ways of handling that.

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

Thank you, Dr. Wemmers.

As I have less than a minute of speaking time left, I will turn things over to Mr. Boisvenu, who wanted to say something earlier.

The floor is yours, Senator.

[Senator Pierre-Hugues Boisvenu, Senator]

The key weakness in victim assistance, particularly with respect to restitution, is that it's a provincial jurisdiction. Four provinces have good services, four have minimal services, and four provinces and territories do not offer any victim services. Canadians are therefore not equal before the law.

Furthermore, if a crime is committed in Ontario but the victim is from Quebec, there will be no compensation from the victim's province of residence. The Minister of Justice should show leadership and set minimum standards, as is the case for health and various programs, to make sure that all Canadians are treated equally, no matter where the crime was committed. It's ridiculous that a Quebecker who is assaulted in Vancouver, for instance, would not receive assistance from either British Columbia or Quebec. However, Quebec tends to do so under its new act.

Leadership definitely needs to be developed within the federal government, at meetings of the ministers of justice, to discuss reciprocity between the provinces and basic standards in terms of victim assistance. I think that's the very least the country should do.

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

Thank you, Mr. Boisvenu.

Thank you, Madam Chair.

[Senator Pierre-Hugues Boisvenu, Senator]

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Mr. Fortin.

Now we'll go to Mr. Garrison for six minutes.

Go ahead, sir.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Madam Chair.

Of course, I remain frustrated by these brief series of hearings that we're doing on the Canadian Victims Bill of Rights in place of the review that we need to see, the five-year legislative review. I'll try to ask some quick questions here out of the myriad of questions I have for these witnesses.

I want to start with a question for Mr. Russomanno.

In the ombudsman's victims of crime recommendation 1, we've talked a lot about some of the provisions, but we haven't had anyone talking about her recommendation to establish an “administrative right to review decisions not to prosecute”. I wonder if Mr. Russomanno has any comments on that recommendation.

[Leo Russomanno]

I guess it's somewhat concerning, given the notion of prosecutorial independence and the difficult decision that Crown prosecutors have to make.

Being on the outside, of course—I've never been an assisting Crown attorney or a Crown attorney—my understanding is that in withdrawing serious charges, for example, charges involving firearms or sexual assault allegations, charges of that nature, it's not a simple matter of a Crown attorney making a unilateral decision to withdraw a charge.

My experience is really from eastern Ontario, but I believe it's the Crown policy manual that dictates that a Crown prosecutor who has carriage of a file would have to consult with senior Crown attorneys, if not the Crown attorney of that particular jurisdiction or a deputy Crown attorney, and have a very serious discussion prior to withdrawing the charge. It's not an off-the-cuff decision, and it's not a decision that is taken unilaterally, but is one in the circumstances where.... Again, based on my own experiences in eastern Ontario, these are not decisions that are taken lightly.

I guess I question what that looks like on the ground. A review of a decision would be.... In what forum would that take place? I'm concerned about tying up further judicial resources where we have a system that is vastly under-resourced as it is and faces systemic delays. I'm concerned about how that might have an impact on prosecutorial independence going forward.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much for that answer.

I have a question for Dr. Wemmers.

As a former criminologist myself, I used to tell my students that no one would design a criminal justice system like the one we have, with this division of powers federally and provincially, because it was built on 19th-century historic circumstances, so I think Dr. Wemmers has made a useful suggestion in the idea of establishing minimum standards for services available to victims. I wonder if she could tell us a bit more about how she thinks that would work.

[Dr. Jo-Anne Wemmers]

As was mentioned also by the senator, we do it for other things like medical services, where there are at least minimum requirements across the country, and then it's for the rest of the provinces to fill it in the way they see fit.

I think the point of departure would be the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

If you wish, as well, there are even better examples. For example, the Council of Europe, which is much more specific and detailed, runs along the same lines and essentially says the same thing, but with more detail and more accuracy. In that sense, it is interesting to point out that the Council of Europe is currently working on a new recommendation for victims of crime as well, so it's something we're seeing internationally. It would be an opportunity for Canada to catch up, because, while I think Canada used to be a leader when it came to victims rights in the 1980s, we seem to have lost that lead in the last 20 years, unfortunately, and I would be very happy to see us do better. We can do better.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you, Dr. Wemmers.

I want to ask about what I guess I will call the interplay between restitution and compensation, and the idea that, depending on who the offender is, some victims might end up with better restitution than others due to the lack of compensation systems.

Do you have any comments on that gap in our system?

[Dr. Jo-Anne Wemmers]

This is one of the reasons restorative justice should be included in it. I was very disappointed that the Victims Bill of Rights only talks about restitution and doesn't talk about reparation in more general terms, because I think it's important to recognize the other more symbolic forms of reparation that can be very satisfying for victims, and perhaps sometimes even more important, given that offenders are often without means to make restitution to the victim.

I think it would be wise to recognize that there are many potential sources of reparation, and capitalize on them. That, I think, would be in the victim's interest as well as that of the offender.