(seconded by the member for Bas-Richelieu—Nicolet—Bécancour) moved:
Motion No. 1
That Bill C-32 be amended by deleting Clause 17.
Motion No. 3
That Bill C-32 be amended by deleting Clause 23.
Motion No. 4
That Bill C-32 be amended by deleting Clause 30.
He said: Mr. Speaker, I rise to present deletions to Bill C-32, the Canadian victims bill of rights.
I and the Green Party support, in general, this important piece of legislation, but with some hesitations about its weaker parts.
Given the damage that the current government has done to the criminal justice system, I am surprised to be saying that. I believe that the victims bill of rights could be a positive step toward alleviating some of the frustrations and emotional pain that victims face participating in the justice process today.
However, the bill is still an imperfect document. I hope that we will improve it in years to come. We were disappointed that, in committee, our worthy amendments were dismissed.
Recent research points to a worrying trend. Canadians, especially victims of crime, have lost confidence in our justice system. A recent report by our own Department of Justice on survivors of sexual violence found that:
While 53% of participants stated that they were not confident in the police, two-thirds stated that they were not confident in the court process and in the criminal justice system in general.
It is no surprise that victims often do not report crimes. As so many victims groups have shared with us, going through the justice process can be confusing, emotionally draining, frightening and demoralizing.
The bill seeks to address some of the concerns of victims, those being greater rights to information, restitution, and protection. However, in the bill, these are more accurately called promises than rights.
I do not believe the bill would deliver what the Prime Minister said it would, that now “Victims will have enforceable rights in Canada’s criminal justice system”.
As many witnesses pointed out to the justice committee, the bill would not really set out rights because there are no substantial redress for violations. Victims are entitled to file a complaint if they feel their rights have been violated and a complaint is better than nothing, but it is not redress.
If this promise is followed by good faith and funding, we will have succeeded in improving the experience of victims in the justice system; if not, we will have made matters worse by promising but not delivering.
Though I support the bill on balance, I have concerns about some of the provisions. As Ms. Sullivan wrote, it is not necessary that we all agree on every aspect of the bill, and:
...what is important is the marking of a cultural shift to more fully consider and integrate victims’ in Canada’s criminal justice system and, jointly, the opportunity for important discourse about victims’ needs and how to better address them.
Since many of the concerns of victims were not addressed in the bill, I hope that Bill C-32 is only the start of the conversation on this important issue.
Three sections, in particular, worry me. I am most concerned about, first, restitution; second, redefining the purpose of sentencing; and third, non-disclosure of witness identities.
I have some concerns with clause 30 that would require that the court consider making a restitution order against the offender, regardless of the offender's ability to pay. This could cause issues both for the victims and the offenders. Restitution, as we have heard from many victims groups, can be an extremely important part of the healing process. It can also be an important step for offenders taking responsibility for their actions.
However, I am concerned, and witnesses were concerned, by the way these provisions are worded. As Catherine Latimer, executive director of the John Howard Society, has warned, these orders for restitution could have a disproportionate effect on those offenders who, far too often, are:
...poor, marginalized, battling mental health and addictions and without the lawful means to provide financial compensation to others.
These orders could also open up the issue of fairness in the justice system.
At the same time, legal experts argue that the wording of 739.2, that requires the judge to specify a day by which the full amount is to be paid, would undermine the good that this system does for victims.
According to the Canadian Bar Association, “Including a deadline for payment could create adverse consequences for victims”.
The victim would not be able to go to court to enforce their order until the final date has lapsed, which could be many years away. According to the Bar Association, “[It] may have the adverse effect of providing victims with false hope of financial recovery”.
The worst thing that could happen is that victims be given the expectation of funds that they will never receive, and at the same time, burdening impoverished offenders with long-term debts that will prevent their rehabilitation.
I am concerned that these provisions will receive the same fate as the victim surcharges that judges have simply been refusing to order and this will leave victims unsupported.
Bill C-32 also seeks to redefine the purposes of sentencing in the Criminal Code. To echo the concerns of the Bar Association:
The cumulative impact of these proposed amendments, with the increased use of mandatory minimum penalties and the elimination of conditional sentence orders for many non-violent offenders, risks adding to Canada’s over-reliance on incarceration.
I do not see how these changes will have positive benefits for victims and may have the negative effect of prioritizing harm done over the other purposes of sentencing. Sentencing is a delicate balance, and there is no evidence to suggest that the balance in the code is presently broken.
Perhaps the most egregious element in this bill is clause 17. That would allow a judge to “make an order directing that any information that could identify the witness not be disclosed in the course of proceedings”.
As every legal expert who testified before the committee noted, this is an unprecedented and almost certainly unconstitutional breach of the right to a fair trial. As Howard Krongold of the Criminal Lawyers' Association testified at committee:
But it's hard to imagine a more fundamental change to Canadian law, one less consistent with Canadians' visions of open, fair justice, where everybody has a chance to a fair trial, where they can make full answer and defence and confront the witnesses against them.
Eric Gottardi of CBA added:
Clause 17 contemplates at least the possibility that the accused and counsel for the accused and the crown might have to cross-examine or direct examine a witness when they have no idea who the witness is. I haven't found a single case that talks about that, and I can't imagine a scenario, short of life and death and someone essentially amounting to a confidential informer, where that kind of process would pass constitutional muster.
Under extreme circumstances, judges already can use their discretion to limit the disclosure of witness identity through the use of pseudonyms, publication bans, and other measures. These are exceptions to the open court principle and they are used sparingly by judges. I would like to repeat the concerns of so many legal experts that what this clause anticipates is a clear violation of the open court principle. This is very worrying.
Every party in this House supports Bill C-32 in principle. It seems, though, that the Conservatives just could not help themselves. They had to insert something blatantly unconstitutional into a bill that everyone supports in principle.
All in all, the bill is a reasonable step toward addressing the difficult position that victims hold in the justice system. It needs to be strengthened and improved, and it will take work. As I said earlier, the bill constitutes more of a promise than it does a bill of rights. Let's make sure we keep that promise.