What were you told?
Evidence of meeting #30 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was victims.
A recording is available from Parliament.
Evidence of meeting #30 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was victims.
A recording is available from Parliament.
As an Individual
When I asked the Crown to lift it.... In my case, we had a lunch break, and the judge in the first half mentioned the publication ban. When I heard this, I sent an email to my victim services worker and said, “Tell the Crown to lift this. I don't want it.” They went back and forth, and the Crown's answer was that they didn't know how to lift it and didn't know what their policy was for lifting it, which felt absurd to me because at the time, I was a 26-year-old woman and this ban was meant to protect my own identity. Who else should weigh in on that question other than me? I should determine what is helpful for my protection and what I want in my own case.
There are different types of publication bans that can apply to cases, none of which I was subject to. This one was meant to protect my own interests, and the Crown felt it was not necessary to proceed and ask that it be lifted that day in court.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Did you raise this issue in court and before the judge? Did you tell the judge that the Crown prosecutor didn't know how to lift the ban and that you wanted it lifted?
As an Individual
The problem is that at that point I had already delivered my victim impact statement. As a victim, you are a witness to a crime. You don't actually have the right to participate in proceedings, so I couldn't actually say anything. However, being me, I put myself off of mute and asked the judge if we could talk about this publication ban. She simply said that she was no longer functus and didn't have jurisdiction on the case, so I wasn't even given the space to explain that I had asked the Crown to lift the ban and the Crown had declined. The judge could have done it. The judge just said she couldn't do it and that I'd have to go to the Superior Court to do so.
I will add that in a recent case in 2021, CBC v. Manitoba, the Supreme Court of Canada clarified that courts of appeal do have the ability to lift publication bans that were initially heard in their level of court. They don't have to go to a higher level of court, so at least that has been clarified. However, my understanding is that Crown attorneys and judges have a limited understanding of how publication bans can be lifted and of the functions for victims who don't want them.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
At the other stages of the trial, leaving aside the issue of the publication ban for the moment, did you have good communication with the Crown and with the prosecutor? Did you understand the process?
As an Individual
I was only able to speak to the Crown attorney in my case once they had decided that they would be doing a joint submission with the defence. My sexual assault case ended up having a plea deal for the lesser charge of assault. When the Crown came to the determination that this is what they would be submitting to the court, they had a call with me to inform me and asked what I thought. However, there was very little explanation by the Crown. There are so many terms that are thrown out in the process. What is a bench warrant? What are submissions? What do all of these things mean? There's no one who really explains it to you.
I only had a very brief interaction with the Crown, and the initial prosecutor who had my file didn't even show up to court that day. It was a different Crown attorney I'd never met in my life. I didn't even know that she was the Crown until she started speaking. In terms of meaningful collaboration or consultation, I wouldn't say there was either of those two words.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Monsieur Fortin.
Next we'll go to Mr. Garrison for six minutes.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Mr. Chair.
I, too, want to start by thanking all four witnesses for being here today. I can't imagine, as I've said before, the trauma and grief that are revisited upon victims in our legal system, but I congratulate all four of you on trying to take this horrible experience you've gone through and turn it into something positive in the legal system. In particular, what I hear consistently from victims, and what I believe I've heard from you today, is that a big motivation is making sure this doesn't happen to anyone else in the future. I thank you for that.
I want to focus my questions on Ms. Andrews today because the question of publication bans is an aspect we haven't actually dealt with before at this committee.
Ms. Andrews, you made reference to very specific recommendations. I know you've submitted a written brief, which will eventually be translated and circulated, but I'd like to give you a chance to walk through those very specific recommendations again.
As an Individual
I'll give you the long form of my recommendations. Those were the short ones in my opening remarks.
What I'm hoping to see is an ability that allows victim complainants the chance to publish, broadcast and transmit self-identifying information at any point in proceedings without seeking the approval of the court, so long as publication is not likely to identify another victim complainant who does not provide consent to be identified.
I think we should facilitate adult victim complainants with the ability to provide one-time or ongoing consent through a simplified and publicly accessible ex parte memo or application to the court so that a third party, such as a family member, or the media can publish, broadcast and transmit identifying information at any point in proceedings, subject to specific limits that are determined by the victim complainant herself without consideration for the views or the notification of the offender or accused, so long as publication is not likely to lead to identifying another victim who has not consented to being publicly identified.
I think we should facilitate the total removal of publication bans at any point during or after proceedings at the request of an adult victim, or in the case of a deceased victim, the request could be made by a spouse, parent, guardian or adult child through a simplified and publicly accessible ex parte memo or application to the court without consideration or notification of the offender or accused. This has already been done in other jurisdictions. In 2020, Australia changed their laws to provide these remedies to victims, recognizing that the system they had at the time was extremely paternalistic and removed agency from victims themselves.
I think what would have helped me is an ability to go onto the Department of Justice's website and really understand the scope of my publication ban: what it covered, how to comply with it and how to have it lifted. You don't have to retain a lawyer to lift a publication ban today, but I still don't know how to do it. I asked a million times and nobody helped me. Kelly did it herself, which I think is incredible and amazing. It is possible, but there's no information out there.
I would also say that a small tweak to the victim impact statement form would facilitate the removal of a publication ban during proceedings when a judge on the case could still actually do so. There's a small box at the bottom of the victim impact statement that asks if you want to deliver it in court. Just add a little box at the bottom—it's a Word document—that asks if you would like the publication ban under section 486.4 to be removed. It's as simple as that.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
I think you also have been very clear—and I want to give you a chance to restate this—that you believe for some victims a publication ban can be useful, but the presumptions from the court seems to be that a publication ban is appropriate for all victims.
As an Individual
Absolutely. Publication bans are really important tools and under no circumstance should people not have access to them. I respect any victim of a sexual offence who chooses to keep her publication ban in place, but for people who don't want them, we need to make sure our processes and procedures do no revictimize victims and complainants.
That's what is currently happening, especially in the case of women—it's disproportionately women—who come through a court case and have no finding of guilt. They're not labelled a victim; they're labelled a complainant, but they still have publication bans that are permanent until a judge lifts them. That needs to be addressed as well, because this is not just about those who have had a finding of guilt. It's about anyone who has come forward and has had a Crown prosecutor put a ban on their name.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Again, would you say that in most cases there seems to be a presumption that a publication ban is the appropriate thing with sexual offences and that it's almost presumed that one would always be in place?
As an Individual
I think it's definitely assumed by Crown attorneys that everyone will want one, so they put them on without asking.
I would have never wanted one. Many of the women I speak to also wouldn't have wanted one. It should be about consent. It's a foundational element of feminism and I'm a feminist. It should be about choice.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thanks very much.
Mr. Chair, I can't see you at this point, so I'm not sure how much time I have left.
Liberal
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you very much, Mr. Chair.
First, I want to thank all the witnesses. My heart goes out to you. It is difficult and it is courageous for you to be here sharing what you've gone through as victims.
Mike and Dianne, I've had the privilege of knowing you for about six years. You spoke in your testimony about your frustration with the failure of the Liberal government to respond to the Bissonnette decision by invoking the notwithstanding clause or doing anything else. Indeed, as you noted, the justice minister simply said that he respected the decision.
Mike and Dianne, and Madam Bosma, could you tell the committee what message you think is sent to you as victims when the minister says he respects the decision and chooses to do nothing more?
As an Individual
In our case, it says that when you have more than one victim, only the first one that goes to trial counts. Even though you go through the entire process to find guilt or innocence or whatever it may be—you go through the trial and get the conviction—nothing actually changes. They don't serve.... I'm trying to find the right terminology. There's no punishment. You can kill as many people as you want here and you're only going to serve one sentence.
Conservative
As an Individual
In our case, we originally started with three convictions of first-degree murder. Unfortunately, in plea bargaining, the perpetrator got the sentence reduced to a minimum type of sentence for murder. We were told by the Crown prosecutors at the time that they honour that because murder is murder and they're going to go on that premise.
That's why he got 40 years and not more than 40 years. Personally, we would have liked to see more than 40 years, but the plea bargaining process and the agreement between the perpetrator and the justice system allowed him to plea bargain down more time.
As an Individual
If I may, when we heard about the decision, our kids.... We have three other sons. Traditionally, we recognize the fact that.... Even though Brian is dead, we still honour him on his birthday and any other celebrations we have. We do that and we don't really discuss what happened.
When we shared with our sons that we might be going to court, we asked them, because we don't know if we're going to live that long, to sign up for victim notifications to pick up the fight on our behalf. They're not willing to do that because they don't have any faith in the way the current justice system is going.
As I said, Dianne and I are getting on in years. In 15 years, if this does happen, I still want to face him regardless of how it goes. I'm adamant that if he thinks he's not going to meet me face to face, we will be having further discussions.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you. I just have a short time, so I'll ask this of both Mike and Dianne, and Madame Bosma.
One of the things the government could be doing, not just in the face of this decision but more broadly, is amend the Corrections and Conditional Release Act for instances of persons convicted of first- or second-degree murder so that when they apply for parole—after 25 years in the case of first-degree murder—and are turned down, as is almost always the case, they're not applying again in 18 months or two years. They should have to wait longer, perhaps five or seven years.
Is that a measure that you think the government should undertake? Would that be of benefit to you?
As an Individual
If I may, I feel that it's at least a step in the direction to assist the families, basically. I still don't think our family is going to buy into it because we really don't have any faith in it.
When all this took place, we started a petition to get the government to invoke the notwithstanding clause. We even had difficulty having our children sign it. Once the petition picked up some steam, they signed it. They farmed it out to all their friends and family, and yes, we have a tremendous number of names on this petition we're working on.