Justice Committee on Sept. 29th, 2022

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Mr. Chair.

Good afternoon, witnesses. I really appreciate your attendance today and your evidence.

I'm going to ask questions of Ms. Arsenault initially.

Ms. Arsenault, as a former justice participant, I'm very curious to hear your views on how, prejudgment, you were treated in your son's case. In other words, we've heard evidence about the deficiencies in how victims are treated across this country. There are some gold standards and there are some abysmal standards. I can probably name a number of jurisdictions that are woefully inadequate. I'm curious as to what your experience was and whether you have any suggestions.

[Sheri Arsenault]

Well, it's hard to be thankful for anything that I've gone through, but I guess I am thankful that we did have a team of prosecutors that—I think mostly because we were on them—did engage us, although you get no options of, say, plea deals or anything going on or in the stalling and the delaying.

You have no say. You have to just go with it, but there are many whom I've supported as a victim's advocate, and their prosecutors would not engage. They don't even know what's going on. They don't even know what the date is for the first court appearance.

In my experience—if you can say that anything is good about what happened to my family—we had very good prosecutors, but that is really, to be honest, quite rare.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you for that, and I thank you for your advocacy.

Did you have anything more to say?

[Sheri Arsenault]

No. I hope I answered your question.

[Larry Brock, Conservative, Brantford—Brant, ON]

You did. Thank you.

I'm going to move now to Professor Waller. Good afternoon.

I listened very carefully to the responses you gave to the question put by my colleague Mr. Naqvi, insofar as your commentary with respect to the current version of the Canadian Victims Bill of Rights goes, which, I think we can all agree, is deficient in a number of areas. As a former participant, I recognize those deficiencies and try to fill those deficiencies on my own. However, it's an issue not just with respect to Crown attorneys, you'd agree. It's judges, police officers and victim services all providing a level of service that is consistent throughout this country.

Do you feel that the current version of the Victims Bill of Rights can substantially improve on that delivery of service so that victims from Victoria all the way to St. John's can expect that gold standard of delivery?

[Dr. Irvin Waller]

I do not understand how the European Union, with 27 different governments, can agree on a series of minimum standards for victims that cover most of the things that we talked about, including what is in the bill of rights and more, and we can't get that sort of agreement among our provinces and territories.

The issue is how you actually develop those standards and get an agreement. That's why you have to have, in the federal government, at a level that can actually influence what goes on, an agency that will be there to develop those standards. England has legislated a code of practice that mentions all the people you mentioned and more, as well as saying what they should be doing. It's legislated. They started with whatever executive document, and then it was legislated, and the remedies are in there. Maybe the remedies aren't enough, but they are remedies.

We really need to wake up and get action on this. The only way we're going to get action is if you actually have a minister and a deputy minister who are responsible for taking the action that we need. Standards are one thing; training is another. What gets measured gets done. We need to measure. We need research and development. We need reciprocal arrangements between different provinces and with U.S. states. We really need to catch up and do something seriously.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you for that, Professor.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brock.

Thank you, Mr. Waller.

Next we'll go over to Mrs. Brière for five minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

I will direct my questions to Professor Wemmers in French.

We also heard Mr. Waller say that the current system doesn’t leave a lot of space for victims. We also heard Ms. Arsenault say that she did not know where to turn after her son died to find help and services.

I would like to know if you think that the Canadian Victims Bill of Rights should describe these rights in more detail. Which officials should inform victims of their rights, and when should they do so?

[Dr. Jo-Anne Wemmers]

Thank you for your question.

The administration of justice falls under provincial jurisdiction. It can therefore vary from one province to another, depending on how it was established. For example, each stakeholder has a role to play in the criminal process. It starts with the police, and goes all the way to the Parole Board of Canada. Therefore, it’s very important for everyone to recognize that they have a duty to victims and work to do with them. That responsibility does not fall to a single person or a single official, but to all those involved at every step of the criminal process. They all have an obligation towards victims.

Next, I think that it falls on the provinces to decide how they want to establish the real administration of justice, and to do so based on what’s available at the regional level in terms of victims’ help services. In Québec, for example, there are CAVACs, or Crime Victims Assistance Centres. There are also other groups, sexual assault centres known as CALACs. There are many community groups. It can vary from one province to the next. However, the important thing is to ensure that, as professor Waller said, minimum standards exist throughout the country.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

I see, but doesn’t fully answer my question.

I would like to know if this should be enshrined in the Canadian Victims Bill of Rights. Who should inform victims, and when?

There are indeed services, especially in Québec. And they are good services. However, if people don’t know about these services, who will point them in the right direction?

[Dr. Jo-Anne Wemmers]

I think we have to respect how Canada is organized. I think that we can do this. In the Criminal Code—there was only one in Canada, because it falls under federal jurisdiction—under procedural law, we could include information on everyone’s roles, including victims’ participation and rights. We could establish who is responsible for doing what; if a task falls under the responsibility of the police or the prosecutor, for instance. To some extent, I think we could add elements to the Criminal Code. It was one of my recommendations, even before the Canadian Victims Bill of Rights was passed, to ensure a certain consistency from one end of the country to the other, so that all Canadian victims of crime have the same rights.

On that level, I think something could be done through the Criminal Code.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

In your opening remarks, you talked about the importance of restorative justice. We know that this form of justice can have a very positive impact on victims as well as on offenders.

Could you give us your thoughts on how conditional sentencing and repealing certain mandatory minimum penalties, outlined in Bill C‑5, could help victims in our communities benefit from restorative justice programs?

[Dr. Jo-Anne Wemmers]

It is important to keep in mind that restorative justice can be positive for victims of crime, but recognizing victims’ needs must be the starting point. All too often, in the criminal justice system, we use restorative justice as a tool to shorten the process, to accelerate the use of alternative measures, for instance. The most important thing is to establish the victim’s needs and, from that point, we can see what can be done. That is where the process has to start. It has to start by recognizing victims’ needs instead of using restorative justice as a tool for legal purposes, I would say.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

You also mentioned the importance of reinforcing communication and cooperation with the different stakeholders, the parties involved.

Could you give us some examples on how to proceed?

[Dr. Jo-Anne Wemmers]

Yes, there are many examples.

[The Chair, Liberal, Randeep Sarai]

Unfortunately, Ms. Wemmers, you're going to have to do that on the next round. We're out of time.

Thank you, Madame Brière.

Next, for two and a half minutes, we have Monsieur Fortin.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Ms. Wemmers.

[Dr. Jo-Anne Wemmers]

You are welcome.

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

Thank you, Mr. Chair.

I will continue with you, if I may, Ms. Wemmers.

You heard the questions I directed to professor Waller. I would also like to have your opinion on the participation of victims in the proceedings.

There is a great deal of discussion, of course, about financial redress or some form of compensation that could be granted to victims, and about the judicial process as a whole. Victims often tell us that they are not informed of the different steps and don’t take part, especially—I’ll say it again—in the infamous plea bargaining. This is when the Crown prosecutor and defence lawyer discuss a possible agreement on an appropriate sentence for the accused. Those most affected by the proceedings, the victims, are not involved in these discussions.

Would it not be appropriate to add, for example, provisions in the Criminal Code to include victims in the proceedings? Would that not be desirable?

Of course, we would have to come back to how to do it, the mechanics. I understand the issue of administration of justice, which falls under provincial responsibility and is, in my opinion, a very valuable jurisdiction.

Nonetheless, isn’t there an opportunity to include provisions to ensure that victims have a chance to intervene, not only for reparations, but for the entire legal process surrounding the event?

[Dr. Jo-Anne Wemmers]

Yes, of course.

In fact, in 2013, at the start of the thought process surrounding the Canadian Victims Bill of Rights, I tabled a brief in which I proposed to give victims a participatory role. This is done in the United States. This is often done at the International Criminal Court. However, the victim is not a civil party, as you mentioned before. They are not one of the stakeholders; they are a participant with certain rights, such as the right to information, to legal representation, and even to redress, if their rights are denied. This exists in many American states.

We could use existing rules in our Criminal Code to do this. It is possible to seek mandamus—that’s a legal term. I could send you the brief I tabled to fully illustrate what was considered at the time.

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

I believe we already have your brief, but if not, I will certainly be happy to read it. Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

Next we have Mr. Garrison for two and a half minutes.

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

Thank you very much, Mr. Chair. I will turn to Professor Wemmers.

One of the interesting things to me in most of the discussions about victims' rights is that there's very little explicit attention paid to gender. Would you like to comment on the factor of gender as it applies to victims' rights?

[Dr. Jo-Anne Wemmers]

That's an excellent point. Something we're seeing come up more and more is gender-based violence and domestic violence. It's not just gender; it's also LGBTQ2+.

I think there has been tremendous progress in intersectionality and understanding the different vulnerabilities and how they can add up if someone is not only female but also gay and Black, and how that makes someone all the more vulnerable. That is something we're seeing.

Now the question is, how do we adapt our criminal justice response to that? That's the challenge, but already recognizing it is an important first step. That we're already talking about it is a start.

Yes, we have to start recognizing how gender influences some of the decisions that we make, as well as some of the vulnerabilities of victims.