[Recorded by Electronic Apparatus]
Tuesday, April 15, 1997
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[English]
The Chair (Ms Shaughnessy Cohen (Windsor - St. Clair, Lib.)): I apologize for my tardiness. I had to deal with a matter involving senior citizens in my riding - lots and lots of senior citizens - so I know you'll forgive me.
I want to welcome Mr. White, whose private member's motion brought us to this point.
Our witness today from the Department of Justice is Catherine Kane, who is counsel in criminal law policy.
Ms Kane, I had an opportunity to speak to you the other day, so I know you have a presentation, but you indicated to me that you actually have accumulated a great deal of information about this particular issue, so I wonder if you'd take a second to just zero in for us on your particular expertise with respect to this. I know you don't like using the ``I'' word too much, but it would be helpful if we knew.
Ms Catherine Kane (Counsel, Criminal Law Policy, Department of Justice): Yes, I can certainly explain why I'm the witness today from the Department of Justice.
When I joined the Department of Justice in 1982, my first task was to explore the role of the victim in the criminal justice system and the provisions of the Criminal Code as they related to victims of crime. I became involved in the federal-provincial task force that was in progress at that time, and I was their general ``do anything'' type of person. I was assigned to assist the task force in whatever capacity possible.
Since that time I've followed the issue of victims of crime for the Department of Justice and I've been involved in several consultative groups with other federal departments and with the provinces as we've worked over the course of the last fifteen years to address victims' issues.
When I indicated that I had accumulated a great deal of material, I meant that I have documents dating back to the early 1980s, copies of task force reports and implementation reports and so on, which I'd be happy to make available to the committee if you feel they would assist you in any way.
In terms of my presentation today, I'm entirely in your hands for whatever you think would be most helpful. I can provide a brief overview of initiatives that have been taken or I can just answer questions, whatever you feel would be beneficial.
The Chair: Perhaps I should direct that to my colleagues then.
Would it be helpful, colleagues, to have an overview of what initiatives have been taken by federal and provincial governments in a general sense?
Ms Kane: In a general way.
The Chair: Then we'll all be starting from the same base.
Ms Kane: Fine.
The Chair: Thank you.
Ms Kane: First of all, I should put this in context. Let me just explain that there is a division of responsibility in terms of the criminal justice system between the federal government and the provinces. The Department of Justice is responsible for enacting and reforming the criminal law, which is primarily found in the Criminal Code and other federal statutes. The criminal law applies throughout Canada and is administered in the provinces by the provinces. Enforcement of the law, the prosecution of offences, and generally the administration of justice are provincial responsibilities.
In the Northwest Territories and the Yukon, the RCMP provides the policing and the Attorney General of Canada conducts the prosecutions.
Because of the shared responsibility for criminal justice, we have enjoyed forever, as far as I can recall, longstanding cooperation and consultation with the provinces. When we're considering any reforms to the criminal law, we consult the provinces, and they also bring issues of concern to our attention when they see problems in the criminal law.
In terms of victims of crime, this has been especially true. We have consulted with the provinces since the early 1980s on how to address victims' issues. Some of them fall within their jurisdiction, some fall within ours, and some are shared.
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A good example is what I consider to be the start of the whole response to victims' issues: the federal-provincial task force in 1981 that was set up by ministers responsible for justice. It reported in 1983 and made 79 recommendations that basically covered the waterfront in addressing victims' needs. It was addressed to social services, health, justice, police, attorneys general - a whole range of people involved with victims of crime.
It brought to everyone's attention the fact that a lot of work needed to be done and it couldn't be done by just one agency or ministry; a coordinated approach was necessary. It really scratched the surface, although it included sessions with victims in which victims indicated their needs. At that point we didn't have the organized victims' groups that we have today. The task force recognized that one of the weaknesses was not hearing enough from victims themselves.
As a result, another follow-up federal-provincial group was established to delve further into the needs of victims of crime, and to comment and make recommendations about how some of these recommendations could be implemented in a practical way.
In 1983 the Minister of Justice and the Solicitor General of Canada issued directives to police and prosecutors in the Northwest Territories and the Yukon regarding charges and complaints of spousal assault, urging them to promptly investigate and lay charges where there were reasonable and probable grounds to believe that an assault had occurred.
Around the same time initiatives were under way to reform the law of sexual assault. Bill C-27 was proclaimed into force in January 1983. It substantially reformed the old law of rape, bringing about the new levels of sexual assault and the evidentiary provisions.
In 1984 the report of the Committee on Sexual Offences Against Children and Youths, referred to as the Badgley report, was submitted to ministers of justice and health, and amendments were made to the Criminal Code to respond to those recommendations regarding child sexual abuse. They became law in January 1988.
From 1984 to 1986, the Department of Justice and the Ministry of the Solicitor General had funds available to support the provinces in initiatives they were prepared to take to explore the needs of victims and to develop services for victims. These were referred to as demonstration projects because they were designed to demonstrate a need for an ongoing program. They usually involved a financial commitment on the part of the province and the federal government.
As a result of some of these projects, many models for victim impact statements, for example, were explored. They indicated that a great deal of flexibility was necessary. What worked in one jurisdiction didn't work in another, or perhaps in the same jurisdiction different models of victim impact statements were thought to be advisable.
In 1984 the national Victims Resource Centre was opened by the Ministry of the Solicitor General to act as a repository for the collection and dissemination of information regarding victimization research, program development, and evaluation of victim services and programs. This resource centre was transferred to the Department of Justice in 1988, and later the collection was transferred to the National Clearinghouse on Family Violence.
Now the department has the Access to Justice Network, an on-line service that includes a victims' home page and is an excellent source of information for any of those who are connected to that network. There is a great deal of potential for its use to provide information to victims about services they may want to access or people they may want to contact. The administrator of that network says they have 12,000 hits per day on the Access to Justice Network from people who are trying to get information on justice issues.
In about 1987 the Department of Justice and the Solicitor General jointly became engaged in the development of a more comprehensive victims of crime strategy, which included the development of the Canadian statement of basic principles of justice for victims of crime, which was designed to respond to the United Nations Declaration on Justice for Victims of Crime.
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We negotiated a new cost-sharing agreement with the provinces for criminal injuries compensation. We established a victim assistance fund, which was a per capita contribution to the provinces to enable them to develop victim services that they wouldn't otherwise be able to provide.
We moved to enact victim legislation in the Criminal Code. A package of amendments was developed, referred to as Bill C-89, that was passed in 1988 and proclaimed at various points after that. That package of amendments included victim impact statement provisions, provisions for the prompt return of property, enhanced restitution provisions, publication bans on the identity of victims and witnesses in sexual offence proceedings, and provisions for the victim fine surcharge as an additional penalty on anyone convicted of a Criminal Code offence.
Also in 1988 the federal and provincial governments jointly endorsed the Canadian statement of basic principles of justice for victims of crime, which I believe you all have copies of. As a result of the 1988 statement, which was meant to be a guide for policy development and the development of legislation, all the provinces and territories have now enacted legislation that addresses the provision of services and assistance to victims of crime. Several jurisdictions have also included the enactment of the victim fine surcharge and the establishment of a victim assistance fund in their own province. Manitoba was the first province to enact victim legislation in 1986, and Ontario recently passed its victims' bill of rights in 1995 and proclaimed it last June.
There have been several other special initiatives to address particular categories of victims. For example, initiatives were taken to address child sexual abuse; I refer to the Badgley report. Bill C-15 created offences expressly to protect children from sexually abusive behaviour and also to facilitate their testimony.
Bill C-15 was later reviewed, I believe by this committee, and as a result of that review several other amendments were made in Bill C-126 to enhance those protections for children, including other amendments to facilitate the giving of evidence, including no personal cross-examination of the witness, and the witness or child being able to have a support person in court with them. These built on protections such as the use of videotapes which, if adopted in court, could be the testimony of the child, and the use of screens and closed-circuit televisions.
In March 1992 the federal cost-sharing agreement for criminal injuries compensation was terminated. In the last several years of the cost-sharing agreement, however, the federal government had contributed 25¢ per capita or $50,000, whichever was greater, up to 50% of the total compensation paid. Special agreements existed for the Northwest Territories and the Yukon to provide a greater federal contribution.
Bill C-41, the sentencing bill, was proclaimed in September 1996. I had referred to restitution provisions that were included in old Bill C-89 in 1988. Those restitution provisions were not proclaimed in force, and as a result Bill C-41 dealt with restitution in a slightly different way than Bill C-89.
As a result of the proclamation of Bill C-41, the sentencing bill, the restitution provisions have been enhanced in the Criminal Code. Restitution can be ordered as an additional sentence on the court's own motion. Previously a victim had to bring an application for restitution. It can be awarded for reasonably ascertainable losses or damages to property or for pecuniary damages resulting from bodily injury. Enforcement of restitution remains the victim's responsibility.
I could also refer to several other pieces of legislation, but I believe the committee is quite familiar with recent initiatives. So in the interest of time I'll skip that, and if you have any questions I can answer them.
The specific provisions of the Criminal Code that were included in Bill C-89 to benefit victims of crime include the victim impact statement provisions, which originally permitted the court, and now require the court, to consider a victim impact statement at the time the offender is sentenced, where a victim impact statement has been prepared. Generally, courts have accepted a variety of forms of victim impact statements, regardless of whether there is a designated victim impact statement in the province.
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Another provision is the victim fine surcharge. Throughout the consultations with the provinces, one of the major issues has been how victim services should be funded. From time to time the priorities of government change, and the concern of victim service providers is that what they may be able to offer today may not be available tomorrow due to changes in funding. We've always been discussing what a stable source of funding could be, and the victim fine surcharge was developed to respond to funding victim services and also to making offenders accountable to victims for some of the harm they have caused.
The Criminal Code included the victim fine surcharge provision in Bill C-89. It's imposed in addition to any other punishment. The revenue raised by the surcharge stays in the province or the territory where it is imposed and is to be used to provide assistance to victims of crime as directed by the lieutenant governor of the province. The money does not go to individual victims. It generally goes into a fund.
Most provinces have now established a designated revenue fund for all victim fine surcharge revenue and the lieutenant governor decides how that revenue is spent. In fact, some provincial victim legislation sets out criteria for how that revenue is to be spent and establishes a committee that receives applications for grant money for victim services. In accordance with those criteria, the committee will expend the revenue from that fund. In addition, several provinces have also established a victim fine surcharge that's imposed on provincial offences, and both surcharges together go into the provincial victims assistance fund.
The amount of the federal victim fine surcharge is set out in regulations to the Criminal Code, which provide that the maximum surcharge is 15% where a fine is the penalty. Where other than a fine is the penalty, an amount up to $35 can be imposed. We're currently exploring revisions to the amount of the victim fine surcharge with the provinces because they have brought to our attention the fact that these amounts appear to be inadequate.
With respect to restitution, as I already mentioned, the provisions included in Bill C-89 were quite complex. They included criminal enforcement provisions. They were not proclaimed into force because a cost-benefit analysis that was conducted indicated that the cost of implementing those provisions would outweigh the benefit to victims.
The Bill C-41 provisions are now proclaimed in force. Currently we don't have any information available about how often they are used, but we will be monitoring.
Other provisions in the Criminal Code are designed to facilitate the gathering of evidence or the giving of testimony by victims. For example, there are provisions that permit the judge to exclude members of the public from the courtroom. There are provisions to prohibit the publication of the identity of sexual assault victims and certain witnesses. Young victims may have a support person present in court with them. They may testify from behind a screen or on closed-circuit TV. Generally, an accused is not permitted to cross-examine a young victim. If the accused is representing himself, the court may appoint counsel to act on behalf of that person to conduct the cross-examination so that a young victim does not have to confront the accuser.
In terms of responding to the notion of a victims' bill of rights, this issue was canvassed with the provinces in the mid-1980s and more recently. The Canadian statement of basic principles of justice for victims of crime, which was endorsed by all provinces and the federal government in 1988, was developed as an alternative to a victims' bill of rights in order to guide the development of policy and to guide the development of legislation at the provincial level.
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At that time, it was noted that federal legislation couldn't appropriately address all the demonstrated needs and concerns of victims for both jurisdictional and practical reasons. For example, a victim's need for information about the progress of the investigation or the prosecution or the availability of services could only be provided by the provincial criminal justice personnel, the police or the crown, as the case may be.
Our provincial colleagues were also quite concerned about the notion of using the term ``rights''. They were concerned that if we said that victims had rights and they couldn't fulfil those rights, it would result in more frustration for the victim. The question became how those rights could be properly enforced. Also, the provinces were quite concerned that most of the issues to be dealt with in a victims' bill of rights were matters of provincial jurisdiction. And at that point they were already involved in the development of provincial legislation to address those issues.
So as I said earlier, all the provinces and both territories have now enacted some form of victim legislation. They are not identical, but there are certainly similarities in the provincial legislation.
The Vice-Chair (Ms Paddy Torsney (Burlington, Lib.)): Ms Kane, how much longer is your presentation? I'm just keeping an eye on the bells.
Ms Kane: It can be as short as five minutes or I can end now and we can go to questions.
The Vice-Chair (Ms Paddy Torsney): Okay.
Are we going to come back?
Colleagues, we're coming back after the vote. It's terrible to leave the witness hanging, but -
Ms Kane: That's fine.
The Vice-Chair (Ms Paddy Torsney): The bells are only fifteen-minute bells, so we have about eight minutes to get over there, but I know you are all speedy, so I thought it would be best to hear Ms Kane's presentation and then come back.
Ms Kane: Do you want me to wrap it up? I can wrap it up quickly. Or do I just wait?
The Vice-Chair (Ms Paddy Torsney): No. We can come back and give you the five minutes or so that you need.
Ms Kane: Okay.
The Vice-Chair (Ms Paddy Torsney): Thank you.
We're adjourned until after the vote.
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The Chair: We're back on the record. You were going to carry on, Catherine.
Ms Kane: I think I was discussing the issue of provincial legislation dealing with victims' rights in a variety of ways. As I said, it's not identical, but there are several similarities in provincial legislation. For example, provisions are referred to as a declaration of principles in the legislation of Manitoba, New Brunswick, Newfoundland, Ontario and Prince Edward Island. Ontario's victims' bill of rights also includes a preamble that has these principles in it.
The Northwest Territories takes a different approach. It provides that the purpose of their victims' assistance committee is to promote, inter alia, the courteous and compassionate treatment of victims.
The Yukon act does something similar, saying that the purpose of their victim services fund is to promote and provide services and to publish information about the needs of victims and available services.
Saskatchewan's Victims of Crime Act also includes a statement of purpose, which is to establish a fund to be used to promote several principles, including that victims should be treated with courtesy, compassion and respect for their dignity and privacy; their views should be taken into account; and that appropriate information and assistance should be provided to them throughout the criminal process where appropriate and consistent with criminal law and procedure.
British Columbia's Victims of Crime Act refers to rights for victims of crime in sections 2 to 8, as does Nova Scotia's Victim Rights and Services Act.
Despite the varying terminology used, the majority of provincial victim statutes include provisions that clearly state that no cause of action lies based on the statute for anything done or omitted. In other words, there's no remedy specified for the inability to fulfil any of these rights or principles set out in the legislation.
British Columbia's Victims of Crime Act, some excerpts of which I believe are in the package you've been provided with, sets out a range of entitlements for victims of crime, and it assigns responsibility to various justice system personnel - for example, the crown, the commissioner of corrections, or the attorney general. Crown counsel is directed to ensure a victim is given a reasonable opportunity to have admissible evidence concerning the impact of the offence as perceived by the victim presented to the court before sentence is imposed for the offence. Another section directs that justice system personnel offer the victim certain information regarding the justice system, victim services, victim legislation and privacy legislation.
Nova Scotia's act sets out victims' absolute rights, including the right to be treated with courtesy, compassion and dignity and the right to the return of property. They also set out victims' limited rights, subject to the availability of resources and to any other limits that are reasonable in the circumstances. These include the right to information about the charge laid, the progress of the prosecution and services or remedies available.
Ontario's victims' bill of rights sets out a range of principles regarding the treatment of victims, including that they should be treated with courtesy, compassion and respect and that they should have protection against intimidation. It also includes that they should have access to information about services, the progress of the investigation and prosecution, court dates, the sentence imposed and any release conditions.
Part of the motion by Mr. White last year, which the Minister of Justice supported, called on the minister to initiate consultations with the provinces aimed at arriving at a national standard for a victims' bill of rights. In May the ministers met in Ottawa and our minister raised the issue with his colleagues and distributed a copy of the motion and of the victims' bill of rights as proposed byMr. White.
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At that time other provinces were also raising the issue of victims. Manitoba had asked that the issue be on the agenda and was proposing that all governments take a look at the victim's role in the justice system. Prince Edward Island had also raised the issue, asking the federal government to look at the victim fine surcharge provisions of the Criminal Code.
As a result of those issues being brought to the minister's attention, it was agreed that federal and provincial senior officials should examine a variety of issues related to victims of crime, including concerns about the victim fine surcharge, how to better coordinate victims' services, and the notion of a victims' bill of rights, or, as an alternative, an elaboration of the Canadian statement of basic principles of justice for victims of crime.
A federal-provincial committee then met in June 1996, and all jurisdictions agreed to participate in a federal-provincial forum to address these issues. Since that time, all jurisdictions have nominated representatives. In November that group met in Regina in conjunction with a victim services conference that was sponsored by Saskatchewan's victim services division. Saskatchewan had organized this conference over the course of about six months. They had also arranged to have a meeting of all provincial directors of victim services. To my knowledge, it was the first time all provinces brought together their directors of victim services.
A great deal of information was provided and shared at that meeting, and a great number of common issues emerged. It was agreed that group would meet with what is now known as the victims' working group on an ongoing basis to address these issues. This group will be chaired by the Province of Manitoba and the federal Department of Justice.
Originally we had planned to meet again this June in conjunction with a family violence conference that Manitoba was sponsoring, but I understand that meeting will now take place in the fall.
That concludes my summary of initiatives that have been taken over the course of the last several years and more recently. If you have any questions, I'd be happy to answer them.
[Translation]
The Vice-Chair (Ms Paddy Torsney): Does the Reform Party have any questions?
[English]
Mr. Randy White (Fraser Valley West, Ref.): Thank you, Madam Chairman.
The Vice-Chair (Ms Paddy Torsney): It's Madam Chair.
Mr. Jack Ramsay (Crowfoot, Ref.): Don't call her ``chairman''.
The Vice-Chair (Ms Paddy Torsney): Thank you, Jack. I knew you'd sort him out.
Mr. Randy White: Madam Chairwoman.
The Vice-Chair (Ms Paddy Torsney): Just ``Madam Chair'' works very well.
Mr. Randy White: Madam Chairperson, you get the point.
I do have a couple of questions. Why do you suppose there are so many victims and victims' rights groups springing up today asking for rights? Can you give me an idea?
Ms Kane: As I said, when we first started to address the issue, there were many victim advocates, I would call them, that were indicating their dissatisfaction with the criminal justice system. Many of those people continue to advocate for reform. Gary Rosenfeldt is a great example of somebody who has continually lobbied for change. I think he would agree some change has been made, but I know more is necessary.
Many advocate groups have become more organized over the last several years. They deserve the credit, and we continue to try to respond to their needs to improve the system. They do raise issues that otherwise might not be addressed.
Mr. Randy White: Let me give you an idea of some inconsistency that I see - for instance, the right to know the status of the offender. If somebody is incarcerated under the federal Criminal Code and a victim wants to know the status of the offender, such as when they're getting out, that sort of thing, often they'll be told by the provincial jurisdiction that it falls under the privacy act of the province or to go see the feds. If somebody's incarcerated in a federal penitentiary, you'll again often get that it is under the privacy act of the province or the federal Privacy Act legislation. Or they'll tell you it's not their problem, it's someone else's. You get shuffled from pillar to post.
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I could give you a litany of examples of this sort of thing. I think that's why they're asking for a bill of rights, which is an overriding guideline among all provinces and among provincial and federal jurisdictions. That problem surely must have come up at your discussion.
Ms Kane: The issue of how to coordinate the provision of information to victims has always been a concern that has been raised. Of the example that you gave, however, to my knowledge there are victim and witness services in all provinces now, and there are directors of victim and witness services. They should be the points of reference in order to ensure that a victim who wants information - whether it has to come from the National Parole Board, Correctional Service Canada, or from provincial agencies responsible for the penal institutions in the province - is put in touch with the person who can provide them with the information. I know the National Parole Board has a victims information line, and Correctional Service Canada has done a great deal to ensure that victims can be provided with the information they need when they request it.
Mr. Randy White: It's very inconsistent between cities, villages, towns and provinces.
Ms Kane: I don't know whether that type of inconsistency would be better addressed by writing down that you have a right to it. I think what victims have consistently said is that they want these services, they want this information, and they want effective measures to ensure that they get these things. I don't know that a victims' bill of rights will ensure that they get the information.
Mr. Jack Ramsay: Madam Chair, could I take some of the time?
The Vice-Chair (Ms Paddy Torsney): There are about six minutes left.
Mr. Jack Ramsay: Thank you.
I'm interested in this working group that is working with the provincial authorities.
Ms Kane: The working group consists of provincial officials and federal officials who share information. It also includes all the provincial directors of victims' services. They have a great deal of information at their disposal about what's available in their own jurisdictions. Our goal is to try to share some of that information.
Mr. Jack Ramsay: And are they meeting this fall?
Ms Kane: They will meet again this fall.
Mr. Jack Ramsay: Are they aware of the contents of motion 168?
Ms Kane: Yes, they are. We did bring it to their attention. That was one of the reasons that group was established: because the minister had made a commitment to raise the issue with his provincial colleagues. He did so last May, and as a result a working group was set up so that we could try to explore some of the jurisdictional and practical issues of a victims' bill of rights or alternative measures to address the same concerns.
Mr. Jack Ramsay: Is that expressed in motion 168?
Ms Kane: Yes, I believe the motion calls on the minister to explore with his provincial colleagues the issues that are matters of either joint or provincial responsibility.
Mr. Jack Ramsay: Are you aware of the extent to which provincial legislation provides for the services contained in the motion?
Ms Kane: Yes, I have in my office a binder of all provincial legislation. Some of the provincial legislation does seem to address many of the points raised in the proposed victims' bill of rights, while other parts take a different approach. As I indicated, some provincial legislation refers to a declaration of principles, some uses the term ``rights'', some assigns responsibility to particular people within the criminal justice system to address those rights or principles, and other pieces leave it rather open by saying that all criminal justice personnel should be responsible.
Mr. Jack Ramsay: Based upon the contents of the motion, are you satisfied that there is a need to examine the deficiencies - if there are any - in the provincial statutes that would address the unaddressed contents of the motion?
Ms Kane: I think there would be benefit in exploring with victims themselves, with victim advocates, and with the provinces what they perceive to be the needs of victims and the gaps in the existing services.
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I don't feel qualified to comment on whether or not a different type of legislation would be better or to speculate in terms of what the gaps are. I think there's a need to further explore those issues with victims to see exactly what they think would be effective and would respond to their needs.
Mr. Jack Ramsay: Okay. How much time do I have?
The Vice-Chair (Ms Paddy Torsney): You have just under three minutes.
Mr. Jack Ramsay: Thank you. Time flies when you're having fun, Paddy.
In the area of the impact statements, I understand that prior to Bill C-41 there was no automatic right of victims to provide impact statements. It was left to the discretion of the court. Is that right?
Ms Kane: Your interpretation is correct. However, our anecdotal information is that most judges would receive a victim impact statement from a victim. The provision in the code permitted them to receive a victim impact statement where one had been prepared, but it didn't require them to receive the victim impact statement. But the information we have is that in most courts in Canada a victim impact statement would be received in various forms. It would perhaps not be in the form desired by the victim - for instance, if the victim wanted to make an oral statement and the practice in that particular court was that the victim impact statement became part of the crown's file and the crown would make the submission. But generally speaking, victim impact statements have been very well received in Canadian courts.
Mr. Jack Ramsay: Of course the automatic nature of it occurred as a result of the passage of Bill C-41.
Ms Kane: Yes. Bill C-41 now requires a judge to consider the victim impact statement, where one has been prepared. A victim is not required to prepare a victim impact statement. Some may choose not to. That's entirely up to them.
Mr. Jack Ramsay: Are you aware that Bill C-45 raised the question as to whether or not it eliminated that right, and as a result an amendment was brought in?
Ms Kane: Bill C-45, to my knowledge, only dealt with the use of a victim impact statement at hearings for early parole eligibility.
Mr. Jack Ramsay: Under proposed section 745.
Ms Kane: Yes. It did not deal with the victim impact statement that would be prepared at the time an offender is originally sentenced. That remained unchanged.
Mr. Jack Ramsay: Do you see a deficiency in the provisions for impact statements, in that oral statements are not automatic?
Ms Kane: As I've said, from my involvement in the issue, not all victims want to prepare the same type of victim impact statement. For some, a written victim impact statement may meet their needs. Perhaps they do not want to give oral evidence in court and be cross-examined on their victim impact statement. Others may prefer to do an oral impact statement. It all depends on the particular case and the particular victim.
What we discovered when we did a lot of what I referred to earlier as demonstration projects in the mid-1980s in terms of different models of victim impact statements is that there was a need for flexibility. Victims didn't want to have to necessarily follow this type of form or be required to do an oral victim impact statement. They wanted the system to be able to adapt to meet their needs.
Mr. Jack Ramsay: Can it adapt now under the law?
Ms Kane: It can. The way the section is drafted, it says that a victim impact statement can be received if it's in a form approved by - these aren't the exact words of the code - the program endorsed by the lieutenant governor of the province. So that sort of suggests it has to be consistent throughout the province. But there's another subsection that follows it to say that the court can receive victim information in any form. So there is that flexibility.
Mr. Jack Ramsay: Thank you.
The Vice-Chair (Ms Paddy Torsney): Thank you, Mr. Ramsay. You snuck in an extra minute there.
We'll now turn to Ms Cohen for ten minutes, and then Mr. Telegdi.
Ms Shaughnessy Cohen: Thank you.
I just want to be clear on a couple of things I came across in preparing for today. One is that Minister Rock referred us to a statement of basic principles of justice for victims of crime, which you've also spoken of today. I contacted his office to ask some questions about it, and it's my understanding, and I'm just seeking confirmation or clarification, that this statement of basic principles is based upon the United Nations document and that it was presented to federal-provincial-territorial ministers in 1988 by the previous government.
Ms Kane: That's correct.
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Ms Shaughnessy Cohen: And it was adopted by all ministers, basically by all Attorneys General in Canada, but nothing else happened to it. In other words, the Minister of Justice at the time didn't bring it back and tell cabinet to adopt it as a guiding principle. And there was no motion in the House to adopt it or anything like that.
Ms Kane: You're correct. In 1985 Canada was one of the co-sponsors of the United Nations declaration of basic principles of justice for victims of crime. At that time as a sponsor we believed we were in compliance with the UN declaration. But when we returned home and advised our provincial counterparts that this motion had been adopted at the UN, there was a desire on the part of all governments to do something more to ensure that we did in fact reflect these principles.
So the Canadian statement was developed as a guide to policy development at the federal level and the development of legislation at the provincial level. Once it was endorsed by all provincial and federal Attorneys General, there was not much publicity about the fact that it existed. We've certainly referred to it over the course of the last eight years as a guide to our own policy development, but it is not very well known. I will admit that.
Ms Shaughnessy Cohen: Okay. Ms Kane, with respect to the fact that the various ministers, including the then Minister of Justice, adopted this, the significance for your department, then, is that in drafting legislation your department should presumably have a view to this. Should it not?
Ms Kane: That's correct.
Ms Shaughnessy Cohen: But nothing binds the government itself. I'm just wondering if other steps shouldn't be taken. Should it be taken to cabinet and adopted? Should there, at least in practice, be some kind of resolution or statute in the House? How could we make this more prominent, first of all, but also more effective?
Ms Kane: I think you've already suggested some ideas that would be worth exploring. I'm sure there are ways in which the profile or the awareness of the Canadian statements could be enhanced. Perhaps there could be a motion in the House or even in a more wide-reaching publication saying that in fact this is the statement that guides us in our day-to-day work within our responsibility in the Department of Justice and within our colleagues' responsibilities in the Ministry of the Solicitor General.
Ms Shaughnessy Cohen: Is there a mission statement for the Department of Justice?
Ms Kane: There is.
Ms Shaughnessy Cohen: Does the mission statement include this?
Ms Kane: I don't believe so.
Ms Shaughnessy Cohen: Has this been published in any way, like in the little glossy cards handed out at court?
Ms Kane: No, it hasn't.
Ms Shaughnessy Cohen: Okay. They do it. You have to hang around courthouses. There are a lot of little glossy cards handed out, and it seems to me that.... I'm certainly not suggesting that this is the way to solve the problem we're approaching, but if the government adopted this and if people knew this had been adopted, then people could make the government much more accountable for it, because it's right there in black and white or green and yellow or whatever.
I want to ask another couple of questions.
If we were to say to the Department of Justice or to a department, ``Look, come to us and show us some other statutes where we might recommend changes so we could guarantee victims' rights, the enforcement of rights which already exist....'' Obviously some of these already exist. I'm thinking of a memo. What triggered that was that something came across my desk last week from the Department of the Solicitor General about pardons. It was a whole pamphlet. As MPs we get asked to assist with pardons from time to time. So I got this thing that said ``Look, we're changing our policy'' - I couldn't believe this wasn't their policy already - ``so if there's a restitution order outstanding we'll know that and we have a way of knowing that and we're not going to give a pardon.''
If someone applies for a pardon but owes cash restitution or some form of restitution to a person, he or she can't be pardoned. It seems to me that it should be impossible to get a pardon if somebody has breached a community service order in terms of probation. There are double jeopardy problems here, I know, but I'm just trying to set some of them out.
I think it might not be a bad idea to take a look at our bankruptcy laws to see if we couldn't at least prevent someone from bankrupting themselves out of indebtedness that arises out of restitution orders.
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I know we've made restitution orders easier to get in Bill C-41, but have we done everything we can to make sure they are in fact enforceable?
Ms Kane: The enforcement of restitution was always noted to be a significant problem for victims of crime. Originally in Bill C-89 we had included some criminal enforcement provisions that would ultimately result in a person going to jail for non-payment of restitution orders. But this would be after a long process of showing cause why restitution wasn't made. Everyone seemed to realize that this still would not put the money in the hands of the victim who needed the restitution order.
Similarly, for other remedies that we might say would encourage the payment of restitution, there isn't any way of ensuring that the money ends up in the hands of the victim. While certainly your suggestion could be explored, I don't know that it would ultimately benefit the victim who gets the restitution order, that it would put the money in their hands.
Traditionally restitution orders have not been relied on to as great an extent as one would expect, because unfortunately offenders tend not to have adequate resources to pay those orders.
Ms Shaughnessy Cohen: I think we have to appreciate that those problems exist, but it seems to me that if there are ten barriers to restitution and one of them is that the guy or the woman went bankrupt, why not at least remove that barrier so that someone with some creativity can find another way to get at assets or something?
Finally, there's not some sort of constitutional problem with exploring things that are within federal jurisdiction.
Ms Kane: No.
Ms Shaughnessy Cohen: So what about doing what we tried to do with some of our child support legislation in terms of preventing people, for instance, from getting federal licences if they have an outstanding restitution order? We could prevent them from registering legally...having permission to have guns, for instance, or export permits or all sorts of permits if they have an outstanding restitution order. Why not?
Ms Kane: I'm sure that could be explored. It would involve sharing information from the provinces, which would know whether or not a restitution order was outstanding, or other community service orders, whatever the penalty might be. Certainly that could be explored.
Ms Shaughnessy Cohen: What about legislation on the proceeds of crime? I'm just stumbling into this. I understand that when proceeds of crime legislation was revamped, the provinces were very jumpy about our tagging that money for any particular purpose. But if the RCMP seizes a fancy Porsche, why not apply that money to some kind of victim fund in part?
Ms Kane: I don't feel qualified to comment on the existing scheme for proceeds of crime, but I do know that this recommendation has been made and explored in the past. The information I received is that there is a detailed scheme in place for how proceeds of crime money is spent, and currently no part of it goes into a victim fund.
The Vice-Chair (Ms Paddy Torsney): Mr. Randy White.
Mr. Randy White: This to me is really about principles, about guidelines, about issues that people don't feel are getting addressed, whether it's inconsistency or whether it's within their own community. It certainly isn't going to go away. It does seem to be getting a lot more prominent as groups expand and as crime keeps being perpetrated.
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I'm interested in your earlier comment. On the notion of rights, I think you were referring to one of the task forces having said there would be more frustration for victims if they couldn't be fulfilled. I thought, well, yes, that is so. But when I look at all of the issues on this that I've been involved with over the last three and a half years - and I've done some considerable study of it - I see a considerable amount of frustration because it is not done, if you know what I mean. So where do we get the answer from? How do we resolve it? Do we say there shouldn't be a bill of rights because victims could be frustrated, or do we say they're frustrated because there isn't a victims' bill of rights?
Ms Kane: The point is that we want to make sure we're effectively addressing what victims need. At the time the notion of a victims' bill of rights was first examined, there weren't as many services for victims as currently exist. All of the provinces were quite clear in saying they have limited resources to do what they can for victims, and they want to make sure that what they do is as effective as possible. Developing legislation that provides certain rights but not being able to provide those rights because effective services aren't available was viewed as perhaps being more harmful. They wanted to make sure they had the services in place before they said they had certain rights or principles available for victims.
Mr. Randy White: I do appreciate how forthright you are in answering these questions.
A big part of the whole issue of rights is about information, basically. If you look at what I had submitted and what most victims talked about today, you'll see they lack a certain amount of information. However, a large number of people in the legal community are quite opposed to the idea of more involvement of victims in the aspect of information to and from a courtroom. How do you see this interaction? Do you see it as getting more complicated if victims have this information?
Ms Kane: The type of information victims indicate they need is usually information about how the criminal justice system functions in general - which is not any secret, and they can only benefit by having that information - and information specific to their case in terms of what's going to happen when, when is the offender going to appear, when is the bail hearing, when has the case been adjourned to, when will he be sentenced -
Mr. Randy White: Plea bargaining.
Ms Kane: - information from the crown about what charges will be laid and why, that sort of thing.
While 15 or 10 years ago there seemed to be some reluctance on the part of people in the criminal justice system to share that information, I don't see that there's any reluctance now. There seems to be an attitude that we need the cooperation of victims because they are essential witnesses in the criminal justice system and without their cooperation the system wouldn't function. Anything that can be done to facilitate that cooperation should be explored.
Mr. Randy White: Actually, I see a great deal of reluctance now, and I would suggest that many victims will tell you that.
Ms Kane: Perhaps I should couch my remarks differently. I'm not in the courts every day. I receive enthusiastic comments from crown prosecutors with whom I discuss these issues and other Attorney General officials. I don't know what those representing the accused would have to say about victims' involvement in the criminal justice system.
Mr. Randy White: So what do you see as the role of Parliament in this whole exercise?
Ms Kane: I think Parliament's role is certainly to explore the issue and see what they can properly do within their mandate as federal legislators. Many issues can be and have been addressed in the Criminal Code. I know that the Parole Board and Correctional Services have taken initiatives, and the committee may hear from people from those organizations. They can better address the action they've taken to respond to victims' concerns. I certainly think that raising awareness of the concerns of victims is an appropriate role for the Parliament of Canada.
The Vice-Chair (Ms Paddy Torsney): Thank you, Mr. White. Mr. Telegdi.
Mr. Andrew Telegdi (Waterloo, Lib.): Thank you, Madam Chair.
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While I was listening to testimony from the victim groups last week, I was struck by the case of Mrs. Mahaffy and Mrs. McCuaig, both coming from the same province, one receiving good service and the other one receiving horrendous service. We're talking about the same province, and that concerns me.
The other thing that concerns me regarding victims is that realistically, we dedicate a great deal of resources to our judicial system. You mentioned the cooperation of the victim is very important in order for the judicial system to function. We have the situation of Regina versus the accused, and outside of the fact that you need the cooperation of the victim to be a witness, you don't have a whole lot of things there for them. I think about the number of people in the courts charged with determining guilt, pretrial detention and apprehension, such as the crown, the JPs, and the judges. It would seem reasonable that in any court where you have numerous courtrooms, resources could be found for services that are specifically for victims. I think it's very important to sensitize all the players in the justice system as to the treatment of witnesses.
We also recognize they're greatly overburdened and are dealing with cases they probably shouldn't even be dealing with within the confines of the criminal court, which sometimes stretch the system to the breaking point. In the functioning of a criminal court, so many things are haphazard. Sometimes a deal is made between the crown and the defence attorney, and the next thing you know they're over at some other court presenting a guilty plea. If we try to slow that process down too much, the courts would collapse from the number of cases they're handling. So I think there's a challenge to try to divert some of those cases away from the courts. That's one thing I really sensed.
The other issue is that we have to have victim service personnel, at least one, available in courts where you have a whole lot of people going through. For every accused, you have one or more victims. I know it's a resource thing, but there's so much put on the other side and so little put on the victim's side. So it really comes down to somehow getting some resources.
I think we could legislate some of that in the Criminal Code and other places. We could try to get the provinces on side to develop a common standard.
Ms Kane: The problem of adequate resources for victims of crime has been identified as a major concern. There's never enough money to go around. That is why, as a partial solution to that, we did include the victim fine surcharge provisions in the Criminal Code in 1988 in order to raise some revenue that would be used for victim services.
Other provinces have also enacted victim surcharge legislation. When I met last fall with the directors of victim services from all the provinces, every jurisdiction represented indicated all their victim services are paid for through that victim fine surcharge revenue. At that time no other governmental resources were being used for services. It was all being financed through surcharge revenue, and they were doing quite wonderful things with that limited amount of money.
In terms of victim witness services, in the courthouses in most major urban centres you will find available a victim witness coordinator. Of course that doesn't exist in all smaller rural communities. I know in Ontario they were developing, for example, an information line to cover those jurisdictions that didn't have the victim witness person in the courthouse. It may still not be enough to deal with the numbers of victims in a courthouse on any given day and to meet all their needs, but it certainly is a start.
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I think if the committee is going to be hearing from any provincial victim services people, they will provide more information on what is currently available, the costs of those services and how they are financed.
Mr. Andrew Telegdi: I almost feel like hearing some more about the Mahaffy case and the McCuaig case to try to find out from provincial officials why that was missed. There's no question that in the McCuaig case it was just a horror story, and it should not happen. That person should actually have somebody dedicated to them for a period of time to help them try to come to terms with the loss they have suffered and the shock the whole family goes through. I know in Canada we have a belief in insurance and in sharing the risks -
The Vice-Chair (Ms Paddy Torsney): Mr. Telegdi, could you please wrap up?
Mr. Andrew Telegdi: Yes. We have to make the resources available. It's not a question of being cute, Madam Chair, it's a question of all the fallout from it. It might be that a victim surcharge is not enough. We and the provinces might have to come up with the bucks to make it happen.
Ms Kane: I would be very surprised if the victim surcharge revenue is enough, but currently it appears that is the only consistent source of funds they can rely on for victims' services.
The Vice-Chair (Ms Paddy Torsney): Thank you. Your resources have run out, Mr. Telegdi.
It's now the Reform Party's turn. You're in a deficit of about 20 seconds because I added the extra time in.
Mr. Jack Ramsay: I don't think I'll need the 20 seconds, Madam Chair.
I'd like a clarification. Is the victims' working group a federal-provincial group?
Ms Kane: That's right.
Mr. Jack Ramsay: There's federal representation on it.
Ms Kane: Yes.
Mr. Jack Ramsay: I want to follow up on what Mr. Telegdi was pointing out. He's right. If we have an inconsistency in the application of services or rights, then that tells me these rights are not rights at all and that they ought to be based in law. If they are based in law and victims are denied them, then someone should be accountable. But they should be accountable by way of legislation. If these rights in the various provincial statutes are not really rights but just policy - for example, if the crown prosecutor or the police want to inform the victim, they can, and if they don't want to, they don't have to, and there is no repercussion - then there are no rights at all, and the legislation is not serving its purpose.
We've had our caucus members attend the section 745 application hearings where the impact statements by the families of victims have been sanitized by the judge. He's literally taken parts out - we don't need that and we won't leave that in - so that the final version is not at all what the individual wanted to present to the jury.
If we want to address the issue accurately, it has to be done by way of legislation, and we tell the courts, the crown prosecutor and the police what to do by way of legislation that we pass. If there is a patchwork of provincial statutes across the country, that would not provide these services. There seems to be evidence, because of the cry from the various groups asking for these rights, that there are not rights at all contained within the provincial statutes. The information is provided at the pleasure or at the will of the components within the justice system. I think what the groups are saying is that's not good enough.
As Mr. Telegdi has pointed out, there was a case in this province where one victim got excellent service while the other got none at all. Why is that? Could you answer that? Why is that?
Ms Kane: I can't answer that because I'm not an official from the Province of Ontario, but I would just draw to your attention that both those situations happened in a province that has a victims' bill of rights.
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The point I was making is that saying that you have rights isn't the same thing as ensuring that people's rights are met. That was the concern initially voiced: that calling them rights doesn't make them rights.
What would be the remedy for a violation or an abrogation of the person's rights? I don't know if you've thought of this. I don't know how to address it. If you said the victim didn't get information in a timely manner, what's the appropriate remedy? I agree that it shouldn't be in the discretion of the crown, but it appears to me that most of them are very well intentioned, and often when information isn't provided, it's because of an oversight or an overwhelming workload or whatever. It's not usually intentional.
Mr. Jack Ramsay: Well, we're sure aware of what the remedy is if the offender is not granted his rights. We know what the remedy is. I suppose what we are searching for is a remedy that is more or less a guarantee that surely the components of the justice system ought to be providing this information to victims. If they don't, there should be some kind of sanction.
Ms Kane: I appreciate that as a goal - that the goals should be met - but I think that's an issue that should be canvassed with victims themselves: what would they like to see as an appropriate remedy where these principles are not appropriately enforced. I would speculate that they would not want to have to go through a trial again to have it done right. They want to put certain things behind them at certain points. So maybe remedies have to be fashioned depending on the particular facts of the particular case.
Mr. Jack Ramsay: Thank you.
The Vice-Chair (Ms Paddy Torsney): And you left six seconds in the bank.
Mr. Randy White: Can I have that six seconds?
The Vice-Chair (Ms Paddy Torsney): Somehow I have a feeling you wouldn't just take six.
It's a fifteen-minute bell, and Ms Cohen had indicated she wanted to speak, as well as Mr. Telegdi. I wonder if we can spend five minutes.
Ms Shaughnessy Cohen: I just want to see if there is something we can do out of this that's going to work. I would throw out the challenge to my colleagues in terms of what the remedies might be. Maybe one answer is something Mr. White raised, and that is that we get busy and do some kind of national consultation.
We can talk about process - we don't need to do that today - and whether we travel or whether we use video conferencing or whether we do a national conference like we did on the Young Offenders Act, where we bring those people together and maybe put them in small groups. We could bring everybody in and work at it for two days with professionals of different sides and victims and people who have thought about it - pastoral care people and all sorts of people together in the room on an equal footing, like we tried to do with the national forum on the Young Offenders Act. That's something that comes to mind. We could whack that off and get that recommended right away.
If we were, though, to say to your department that we need a compilation of federal statutes where there may be some rights that we can limit if somebody has been convicted of an offence - I hate to dwell on restitution, but I think it seems to be the wave of the future here.... If we ask the Department of Justice to compile these statutes for us and make some recommendations as to where we might be able to use the kinds of remedies I was talking about, the Bankruptcy Act, licensing, and that sort of thing, using the model of the child support passports, that kind of thing, is it possible for you to do that? And if you were going to do that, would you need more than a day and a half? You don't have anything else to do, do you?
Ms Kane: It's certainly possible that it could be done. I don't think I could undertake to do it within a day and a half, but I think it would be an excellent project if we had a summer student, for example, working in our department to compile -
Ms Shaughnessy Cohen: To dedicate someone to do that for us.
Ms Kane: Yes, to do the task, and you could have all this in the fall, or whenever you -
Ms Shaughnessy Cohen: You could report this back to the committee.
Ms Kane: It could all be provided to the committee.
Mr. Randy White: Our government will accept that in the fall.
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Ms Shaughnessy Cohen: I know, Randy. If I were sitting over there -
Mr. Randy White: You'd do the same thing.
The Vice-Chair (Ms Paddy Torsney): Don't worry, Randy, there's still a lot of time.
Ms Shaughnessy Cohen: Randy, if I were sitting over there, I'd do the same thing. What I'm trying to do is get something going.
Let me say, Madam Chair, through you to my colleague on the other side, whose black and white tie I'm desperately trying to read from here and can't, would you accept recommendations like that to get this moving?
Mr. Randy White: Yes. I think -
Ms Shaughnessy Cohen: And If I draft them tomorrow -
Mr. Randy White: I think we're open to recommendations like that. And I think we are talking about the differences between rights and privileges and all those things. This has been a good discussion about that.
Ms Shaughnessy Cohen: I want -
The Vice-Chair (Ms Paddy Torsney): In the final two minutes of the discussion, Mr. Telegdi will have the time.
Ms Shaughnessy Cohen: Boy, you're really bossy! I'm glad you're not there all the time.
Some hon. members: Oh, oh!
Mr. Andrew Telegdi: I'm really also concerned about the fact that Olson is able to contact his victims. That just blows my mind. The judge could so easily say ``You will not have contact.'' I think I would reverse the onus: unless the judge says that you have the right, you don't have the right. That just blows my mind.
Also, I think we should have national consultations. I think for the committee's edification, we really should have the Mahaffy people and the McCuaig people here, and we should start questioning the provincial officials on it. We have to understand what's there now. Once we understand what's there now, we can start making some hefty recommendations. And if you need legislation, I would be all in favour of legislation.
The Vice-Chair (Ms Paddy Torsney): In the last 30 seconds, I might say that for something that's this intense, where you really need to understand all the perspectives, maybe we could do something where we bring everyone together, because actually we have already heard from Mrs. Mahaffy.
One of the problems is that as we develop the ideas we never get to test them on the person who was before us the day before. If we actually had everybody sitting down together we could debate the points back and forth and figure out which way we're really headed. That's just my personal -
Mr. Randy White: I would be reluctant to go just with the Mahaffys and the McCuaigs -
The Vice-Chair (Ms Paddy Torsney): No, I didn't mean -
Mr. Randy White: There are all kinds of people out there to whom this has happened, almost identical -
The Vice-Chair (Ms Paddy Torsney): So we can get representatives. I just meant that there should be something that's representative.
We have less than ten seconds now.
Thank you very much to our witness, who has once again done a stellar job.
Ms Shaughnessy Cohen: You had better get back and let them know what's coming.
The Vice-Chair (Ms Paddy Torsney): Yes. And find that funding for the summer student. Randy might have nothing else to do this summer.
Some hon. members: Oh, oh!
The Vice-Chair (Ms Paddy Torsney): Take care.
We're adjourned.