Justice Committee on June 8th, 2021

[The Chair, Liberal, Iqra Khalid]

We have Dr. Jo-Anne Wemmers, who is a full professor in the School of Criminology, International Centre for Comparative Criminology at the Université de Montréal.

Lastly, we have from the Criminal Lawyers' Association, Leo Russomanno, lawyer.

I have been advised that Mr. Russomanno did not conduct his sound test before the meeting started. Mr. Russomanno, please make sure that you're speaking very slowly, clearly and loudly, so that we don't have any delays with interpretation.

As witnesses may know, I have one-minute cards and 30-second cards to help you keep time during your opening remarks.

We'll start with the honourable senator, for five minutes.

[Senator Pierre-Hugues Boisvenu, Senator]

Thank you very much, Madam Chair.

Ladies and gentlemen, thank you for this opportunity to address you today on the Canadian Victims Bill of Rights, which the Conservative government adopted in 2015. I worked for nearly 10 years to get this charter adopted.

In 2005, three years after my daughter Julie was murdered, I had a private meeting with Stephen Harper, who made a personal commitment to make his government the government of victims and to adopt a victims charter. Without that commitment, this charter would not have seen the light of day. He kept his word and I want to thank him for it.

The Canadian Victims Bill of Rights was intended, above all, as a recognition of the victims of criminal acts and their rights within the criminal justice system. This supraconstitutional act, need it be repeated, is based on four fundamental rights that actors in the criminal justice system have a duty to honour: the right to information, the right to participation, the right to protection and the right to compensation.

Unfortunately, victims have not always been treated in accordance with the charter's principles since the charter was introduced six years ago. The charter's objective is theoretically to rebalance the rights of criminals and victims within the justice system by recentring the importance of the role of both those groups. In practice, however, that concept has not been properly applied, as noted in the “Final report on the review of Canada's criminal justice system,” which was released in 2020.

First of all, the report shows that victims find it difficult to report crimes committed against them to police for fear of repercussions against them or apprehension that their cases will not be taken seriously. This lack of trust stems from the very lenient way in which justice is administered to the assailants of victims of domestic violence and sexual abuse, in particular. As a result, sections 9, 10 and 13 under the charter's Protection heading are not complied with.

I would remind you that most of the 160 women murdered in Canada in 2019 had previously reported their attackers to police. That cost them their lives. The report also highlights a lack of compassion and respect for victims once they are in the justice system.

Last fall, I introduced a bill in the Senate to amend the Corrections and Conditional Release Act to assist the families of victims who felt they were being excluded by the Parole Board of Canada and not informed of parole hearings that were being held.

Although the Senate and the House promptly adopted motions to hold meetings via videoconference, was it normal for the Parole Board of Canada to take nearly a year to allow the families of victims to attend those hearings? Section 8 under the charter's Protection heading was thus not complied with. The failings outlined in this report are a direct consequence of a lack of action by the federal government to have its own institutions comply with the Canadian Victims Bill of Rights. When an act as complex as this one comes into force, the government has a duty to ensure it is administered and constantly improved.

The document entitled, “Progress Report: The Canadian Victims Bill of Rights,” which the Office of the Federal Ombudsman for Victims of Crime also released in 2020, states that training opportunities for criminal justice officials are limited and that there has been no campaign to inform victims or the Canadian public of their rights.

The first point raised in the progress report is that there is no legal remedy for non-compliance with the provisions of the charter. There are no possible court remedies for victims whose rights have been violated. They may still file complaints with the organization concerned, but no mechanism has been established to review those complaints, as the charter provided when it was adopted in 2015.

To remedy this problem, it is imperative that the report's first recommendation be implemented: “Delete sections 27, 28 and 29 of the Canadian Victims Bill of Rights, which deny victims any standing to appeal to courts for review when their rights are not upheld.”

The other important point concerns an amendment that I think should urgently be adopted to improve the handling of these complaints. The Office of the Federal Ombudsman for Victims of Crime reports directly to the Minister and Department of Justice. Given the importance of the ombudsman's mandate, the office must be independent of the Department of Justice, and an act should be passed to that effect so that the position reports directly to Parliament. The Office of the Ombudsman should also be the sole competent authority to review the complaints of victims of criminal acts with regard to the way they are treated by a department or federal agency.

If the Correctional Investigator reports to Parliament to ensure the office is independent, why isn't that the case of the Ombudsman for Victims of Crime?

Ladies and gentlemen, it is essential that the act be reviewed every five years. In 2015, we were aware that we had just given victims a vehicle for equal recognition of their rights. Unfortunately, the federal government has forgotten how to maintain that vehicle since it was adopted and, even worse, has put no one in the driver's seat.

It is now up to you to decide the fate of the Canadian Victims Bill of Rights. It will be hard for the justice system to restore the trust that victims have lost in Canadian justice if the charter is not reviewed every five years so that their voices and opinions can be heard.

Thank you for your attention.

I am now ready to answer your questions.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Senator Boisvenu. Thank you for sharing your story with us.

We'll now go to Dr. Wemmers for five minutes. Please go ahead.

[Dr. Jo-Anne Wemmers, Full Professor, School of Criminology, International Centre for Comparative Criminology, Université de Montréal, As an Individual]

It's an honour to be here. Thank you for inviting me.

When we look at the Canadian Victims Bill of Rights, clearly it represents a step forward, but several issues remain that need to be addressed. Canada has a responsibility to ensure that the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which Canada was one of the countries that took the initiative to develop, is respected across the country. Unfortunately, currently, Canada does not meet these minimum standards and norms for victims of crime.

Key topics that are included in the UN declaration, such as state compensation, victim support and restorative justice, are not included in the Canadian Victims Bill of Rights.

For example, according to articles 12 and 13 of the UN declaration, states should create compensation programs for victims of violence. Currently in Canada, not all provinces and territories have such programs. This inequality needs to be addressed in order to ensure that all Canadians have access to the minimum standards identified by the United Nations. The Canadian Victims Bill of Rights should be modified to include these basic rights for victims. Specifically, the Canadian Victims Bill of Rights should be amended to include access to victim support, restorative justice and state compensation programs.

Second, regarding restitution, in order to execute a restitution order, section 17 of the Canadian Victims Bill of Rights refers victims to civil tribunals. However, civil judgment does not really help victims. We know this. This has been well known for 20 or 30 years in the research. Recognizing the inadequacy of such a provision, other countries have made the state, rather than victims, responsible for enforcing restitution orders, treating them like they treat fines. The state already has mechanisms in place to ensure that fines are paid, and these systems can be used to retrieve restitution owed by offenders. I address this in the research brief, “Restitution in the context of criminal justice”, which I attached with my documents yesterday. It's available in both English and French.

Third, regarding language, article 3 of the UN declaration states that all victims should have access to rights and services, regardless of their language, race, gender, age and so on. Canada is officially bilingual, not to mention the many other languages, indigenous languages, found in Canada. The criminal justice system is set up to accommodate the linguistic needs of the accused, of offenders; however, it does not address the linguistic needs of victims.

An example that is not uncommon, unfortunately, in Montreal courts is when one party—the offender, for example—speaks one language, such as English, and the victim speaks another, such as French. The accused has access to translation services, and rightly so, but the victim does not, and a victim who wishes to attend the trial and follow the case cannot even ask a bilingual friend to accompany them and to help translate. As they are members of the public, they sit in the public tribunal and no one is allowed to speak during the trial.

This problem is not limited to the courtroom either. Services such as compensation programs often have unilingual websites, forms, and so on. Specifically, the Canadian Victims Bill of Rights should be amended to include equal access to rights and services regardless of language, race, gender, age and so on.

Fourth, the rights in the Canadian Victims Bill of Rights are non-enforceable rights. I was quite happy to see the senator raise this issue, as well. This means that when victims' rights are not respected, they have no recourse. What good are rights if they are not enforceable? Victims are powerless against an omnipotent state that has the power to force them to testify as well as the power to shut them out. We need to recognize that crime is a violation of victims' human rights, as well as an offence against society.

Treating victims with dignity and respect means recognizing them as persons before the law, with rights and with recourse. The Canadian Victims Bill of Rights must be amended to include an enforcement mechanism; otherwise, to quote Ontario judge Gerald Day, one can only conclude “that the Legislature did not intend for the Victims Bill of Rights to provide rights to the victims”. I quote this from the decision in Vanscoy and Even in 1999, when two victims brought this case to the government when their rights, as stated in the Ontario Victims Bill of Rights, were not respected.

I have attached a copy of chapter 7 of my book, Victimology: A Canadian Perspective, in which I discuss victims' rights in Canada and abroad.

Specifically, articles 27, 28 and 29 of the Canadian Victims Bill of Rights should be deleted. They should be replaced with an enforcement mechanism.

Modify the language of the Victims Bill of Rights, including article 20, to acknowledge the victims' human rights and recognize that crime constitutes a violation of their human rights.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Dr. Wemmers.

We'll now go to Mr. Leo Russomanno for five minutes. Go ahead, sir.

[Leo Russomanno, Lawyer, Criminal Lawyers' Association]

Good afternoon, everyone.

On behalf of the Criminal Lawyers' Association, thank you for having us back to appear on this important bill. As I recall, approximately five or six years ago I was present before the Senate committee to speak about this bill. I think it's an important exercise for the committee to review bills after they've been enacted, to evaluate their performance.

I don't intend to use up my full five minutes. In my experience, more of the useful dialogue happens when we're exchanging questions and answers with committee members.

I will say that the Criminal Lawyers' Association includes members who primarily practice criminal law. That also includes providing independent legal advice to complainants and alleged victims. In my own practice, I've taken on many files involving independent legal advice to witnesses, alleged victims and complainants.

I think there's an important perspective here, but the perspective of the Criminal Lawyers' Association is really in relation to questions that the members might have about how some of these changes might play out on the ground in trial courts.

As a general observation, I should say that the Criminal Lawyers' Association is concerned about where aspirations don't match reality on the ground and investment in the criminal justice system. We could aspire to create a better system, but without providing the means for that on the ground through investment in the system and investment in access-to-justice models, those become simply hollow words on paper.

Access to justice is a buzzword. Everyone loves talking about access to justice. Oftentimes, in my experience, when the rubber hits the road when it comes to actually investing in the criminal justice system, it becomes merely a tag line. Without any follow-up and investment, access to justice will remain an elusive goal. It's important to address some of these issues and the understanding that victims, witnesses and complainants have of the criminal justice system.

I'll leave it at that for now. I welcome any comments or questions from the members of the committee. Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that, Mr. Russomanno.

We'll now go into our first round of questions for six minutes each. We'll start with Madam Findlay.

Please go ahead.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Thank you very much to the witnesses here today. There's been some powerful testimony with specific ideas, which is very helpful. I really appreciate it.

I'll speak to Senator Boisvenu for a moment.

Hi, Senator. I thank you for your work on Bill S-231.

[Senator Pierre-Hugues Boisvenu, Senator]

Good afternoon.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Good afternoon and welcome.

Intimate partner violence is something this committee has recently studied. We repeatedly heard that the existing protections for victims of domestic violence aren't always sufficient. We had testimony from Chief Duraiappah of the Peel Regional Police, survivor Kamal Dhillon and others.

Could you expand on what more needs to be done to protect victims of domestic violence? Specifically, how might Bill S-231 better support these victims?

[Senator Pierre-Hugues Boisvenu, Senator]

First of all, I want to inform the committee that Bill S‑231 was drafted together with some 100 women who had all been victims of domestic violence; many had also been victims of attempted murder. We gave them a pen and simply asked them what amendments they wanted made to the Criminal Code.

Three important recommendations emerged.

The first was that assailants should be monitored more closely while on trial by means of an electronic bracelet, which is already being used for some purposes in Canada and many other countries.

The second was that an obligation for assailants to undergo therapy should be introduced into the Criminal Code. The idea here is thus to address the causes of the violence. The consequence is that women are murdered, but the cause is often that some men manage their emotions poorly. By requiring assailants to undergo therapy, we will be directly addressing the causes.

The third recommendation was that provisions should be added to the Criminal Code concerning orders not to disturb the peace as well as a new chapter specifically respecting domestic violence.

The purpose of this first step we are taking is to provide better protection for women and, especially, to reduce the number of murders in Canada. Every year, 12 to 15 women are murdered in Quebec, a figure equivalent to the number of victims of the École polytechnique massacre.

This is a very important bill. My colleague Jacques Gourde has introduced it in the House of Commons. I think the House should promptly study the bill because lives depend on it.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

The Office of the Federal Ombudsman's 2020 progress report notes:

Based on our analysis of the data available to us, it appears that the objectives set out in the [Victims Bill of Rights] have not been met.

It goes on to say:

The voices of victims and survivors are clear, and our own practical experience with the Act over the past five years has shown us that, despite the primacy it was given as quasi-constitutional when it was created, its implementation has been sporadic and inconsistent.

Do you agree with this statement, Senator?

[Senator Pierre-Hugues Boisvenu, Senator]

I fully agree.

Honourable members, I'd like to draw a comparison with the Canadian Charter of Rights and Freedoms adopted in 1982, which has changed a lot since its passage as a result of court decisions. The Canadian Victims Bill of Rights, however, has not undergone any changes in six years. It is a theoretical vehicle, but theory must be put into practice. Because complaints are not managed by a single entity, like the ombudsman's office, it's impossible to get a true picture of how weak this bill is and what victims think about it.

Ms. Illingworth, the Federal Ombudsman for Victims of Crime, is quite right to say that her office should be responsible for administering complaints. I would add that she needs to be completely independent, because the nature of her position would risk putting her in a conflict of interest with the minister if she had to investigate complaints concerning her department.

The ombudsman should therefore report directly to the House of Commons, as the correctional investigator does. It's up to all MPs to evaluate the quality of this bill and ensure that federal agencies comply with it. The ombudsman's independence is very important.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Thank you.

You mentioned both the training of criminal justice officials, which has been limited, and the lack of public educational efforts.

Do you wish to expand on that a little?

[Senator Pierre-Hugues Boisvenu, Senator]

Every day of every week, victims of crime who are dealing with the justice system contact my office for support. When I tell these victims about what is in the bill, I'm always dumbfounded to find that the Crown attorneys, who represent the state, have no idea of what in there. That's often the case for judges too.

There has never been a Canada-wide information campaign to inform Crown attorneys about the contents of the bill, or to give training to judges on its contents, or to provide the people of Canada with information. Who knows whether they might not be a victim of crime tomorrow morning. We have no idea of what rights we would have under the system.

It is essential for the federal government to provide information about this, just as it does in other areas, like health, industry and the environment. People need to be told about the contents of this bill; otherwise we'll still be no farther ahead in five years.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Thank you.

I'm out of time. I have many more questions for the professor and others, but I'll leave it to my colleagues.

Thanks.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Madam Findlay.

We'll go to Mr. Kelloway now, for six minutes.

Please, go ahead.

[Mike Kelloway, Liberal, Cape Breton—Canso, NS]

Thank you, Chair.

Hello, colleagues.

I'd like to say a special thank you to the witnesses for some important testimony today.

Before I begin, I just want to say that my heart and the hearts of all the people in my riding of Cape Breton—Canso go out to the victims of the shooting in London, Ontario, and their families. It is an immense tragedy.

Dr. Wemmers, the night of April 18 into the morning of April 19, my province, Nova Scotia, fell victim to a horrific tragedy that is known as the worst mass shooting in Canada's history. The gunman entered 16 small rural communities across my province, killing 22 people and injuring three others, including members of the RCMP. It's an exceptionally sad, sad chapter in Nova Scotian and Canadian history. Just 10 days after this tragedy, our government announced an immediate ban on some 1,500 makes and models of military-grade, assault-style weapons.

I think we all know that victims who survive such violence are often left with emotional and physical trauma.

Doctor, what does this ban mean for these sorts of victims of gun violence, or victims of other forms of crime, like domestic violence? You spoke to this at some detail in your opening statement, but this is a chance for you to unpack some of those points that you made. Do you think our government could be doing more to support victims of gun violence or their families, moving forward?

[Dr. Jo-Anne Wemmers]

Yes, I think we can do more. In particular, on the question of compensation for victims of violence, what is offered by Nova Scotia, for example, in terms of state compensation for victims of crime, is very limited. It's psychological care, which is very important, but that's it. That's all that's offered.

There are, as a result, great differences across Canada. Some provinces offer absolutely nothing. In Newfoundland there is nothing. In the territories there is nothing. That is unacceptable.

So yes, a lot has to be done and a lot more can be done to make sure that Canada meets the minimum standards set out in the UN declaration in order to meet the needs of victims. I think about what happened recently in London, Ontario, which was horrible. My first thoughts were about what is available now in Ontario in terms of aid and assistance for the child who survived. Last year the Ontario government stripped its state compensation program. What was available before, after 20 years of trying to make it better, was replaced by something that, in comparison with Quebec, for example, is very minimal in terms of what services are offered.

This is a real concern. We should at least have minimum standards across the country, so that basic essential services are available to all Canadians who fall victim to violence.

Does that answer your question?

[Mike Kelloway, Liberal, Cape Breton—Canso, NS]

It does. I really appreciate that feedback.

Dr. Wemmers, Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act, recently amended the Criminal Code to provide complainants in sexual assault cases with the right to participate and be represented in proceedings to determine the admissibility of evidence about their sexual history. Our government considers this an important change to support victims of sexual assault.

Again, along the same lines as the last one, are there further ways, through the Canadian Victims Bill of Rights or otherwise, in which our government could support victims of sexual assault?

[Dr. Jo-Anne Wemmers]

Yes. I would go further and say “all” victims, but start with victims of sexual assault. That modification is a very important step in terms of a first step toward recognizing victims as persons before the law with a right to privacy and with a right to safety. Victims' rights are human rights. This is important.

At the Université de Montréal, we are starting, as of September, a legal aid clinic for victims of crime. This is important in terms of informing victims of what the law is, informing victims of what their rights are, and recognizing that victims have a legitimate interest in the criminal justice process. They are more than just witnesses to a crime against the state.

The legislation you just mentioned goes one step, a first step. A second step would be enforceable rights for victims, taking the Victims Bill of Rights and adding some sort of recourse for victims.

[Mike Kelloway, Liberal, Cape Breton—Canso, NS]

Dr. Wemmers, I wrote down what you said, that “victims' rights are human rights”. I think that is profoundly impactful. It just completely resonates with me.

Is there anything else with respect to adding support beyond the compensation you referenced, and of course that victims' rights are human rights? Are there other tweaks we could look at to strengthen this? You say we're going down the right path, which is amazing and important, but what else could we be doing beyond some of the things you mentioned?

Perhaps you could take the next 30 seconds to provide us with some insight on that.

[Dr. Jo-Anne Wemmers]

Enforceable rights would be the most important thing, in all honesty. If we start with that, and we start with some sort of recourse for victims so that they....

Also, identify who is responsible for what. Now it just says in the charter, “authorities” or something. We have one Criminal Code in Canada. We should be able to identify who does what—when it's the police who are responsible for something and when it's the prosecutor. As long as it remains ambiguous, no one will own up. It will lead to a lot of confusion and ambiguity for victims as well.

It's important to make them enforceable rights, but also to have clarity in the bill in terms of who is responsible for respecting which rights of victims.

[Mike Kelloway, Liberal, Cape Breton—Canso, NS]

Thank you, Dr. Wemmers.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Mr. Kelloway.

Senator Boisvenu, I see that your hand is raised. Are you having difficulties?