Mr. Bruce Hyer (Thunder Bay—Superior North, GP)
(seconded by the member for Bas-Richelieu—Nicolet—Bécancour) moved:
|| That Bill C-32 be amended by deleting Clause 17.
|| That Bill C-32 be amended by deleting Clause 23.
|| 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.
Mr. Sean Casey (Charlottetown, Lib.):
Mr. Speaker, I thank my colleague for Thunder Bay—Superior North for his speech. It was a very insightful analysis into some of the major flaws of the bill.
All of the flaws that the member pointed out were identified and flagged, as he said, by the Canadian Bar Association, whose representative testified at committee. They were also the subject of amendments that were proposed at committee and rejected.
In fact, the Canadian Bar Association submitted an extensive brief with several recommendations. Every single one of those recommendations was proposed in amendment form and every single one was rejected by the Conservative majority on the committee.
However, my question has to do with resources. It is all well and good to have a lengthy preamble and statements about how we are going to improve the lot of victims and all of these declarations, but unless there are adequate resources to fund programs, and unless there are adequate resources to give the victims the right to information and to complain, contained in the bill, then it is really not worth the paper it is printed on.
I would like to get the hon. member's views on what more should be done, other than what is in the bill, to give the victims the standing in the justice system that they so dearly want.
Mr. Robert Goguen (Parliamentary Secretary to the Minister of Justice, CPC):
Mr. Speaker, I am pleased to rise once again to speak to a subject that we have been studying in committee for quite some time. This government's bills are all about protecting victims. Bill C-32 is the result of consultations with 185 groups from across the country as well as 300 online submissions.
One thing that the government heard frequently is that victims face many injustices when they interact with the justice system. I would like to give an example of what Bill C-32 is going to do to help victims and witnesses deal with the difficulties they experience in the courtroom.
Ms. Timea Nagy, founder of Walk With Me Canada Victim Services, shared with us something that happens quite often in trials involving organized crime.
Let me tell members a bit about what this organization is doing in the community.
Established by a survivor of human trafficking, Walk With Me was created with a commitment to ensure that survivors have a place in providing first response care to victims of human trafficking and to recognizing that survivors should have a voice in developing a coordinated community response that can meet immediate crises and longer-term needs of trafficked victims. Since its inception in 2009, Walk With Me has been working closely with various police services across Canada and has been able to provide unique services and support to many victims of human trafficking in Ontario and all across Canada.
You can already imagine the immense courage that Ms. Nagy and the people she helps must have.
During the committee study, Ms. Nagy shared a story with us. When she testified in court in a human trafficking case—she was both witness and victim—the accused's brother was in court and motioned to her that he would slit her throat.
It is understandable that this type of behaviour intimidates victims and witnesses. In many cases, the victims or witnesses are too scared to testify because they are afraid of reprisals. The crown attorneys cannot use their testimony to send dangerous criminals, members of organized crime, to jail.
Bill C-32 will allow witnesses to testify without seeing those present. The purpose of this measure is to reduce intimidation in order not to revictimize the victim. The bill will also improve the justice system by providing crown attorneys with additional tools to collect more solid evidence against criminals during their trial. We hope that this will reduce the number of criminals who avoid serving jail time because they manage to intimidate key witnesses.
Revictimization is an issue that came up a number of times. Victims felt it was important for Bill C-32 not to create additional delays. A procedural delay prevents victims from moving forward in their healing process.
As Alain Fortier, the president of Victimes d'agressions sexuelles au masculin, explained, victims are forced to remember the details of terrible, traumatic events. They have to constantly relive the negative experience and describe it in court. Victims want to be able to heal. The longer the process is, the greater the consequences for the victim. That is why it would be bad for Bill C-32 to create additional delays in a process that is already too painful.
Another interesting point I want to talk about is spouses being uncompellable. In short, this means that witnesses cannot be required to disclose something their spouse told them. This frequently comes up in cases of drunk driving, where the only witness is often the driver's spouse.
Lise Lebel, the president of the Fondation Katherine Beaulieu, a Quebec organization that does similar work to that of Mothers Against Drunk Driving, told the committee:
|| Our organization agrees with the amendments proposed in Bill [C-32], which obliges spouses to testify in all cases. These amendments reflect a systematic trend towards providing crown prosecutors with access to all relevant evidence.
Once again, it is important to give crown prosecutors all the tools they need. Our justice system needs to re-earn the public's trust, and this is another good example of how we can achieve that.
A number of victims' groups told us that the victims bill of rights was a step in the right direction. I want to name a few of the groups that testified in committee.
They include MADD; Robert Hooper, lawyer and victims' rights advocate; Steve Sullivan, former federal ombudsman for victims of crime; Boost Child Abuse Prevention & Intervention; Comité des orphelins victimes d'abus; Timea Nagy, founder of Walk With Me Canada Victim Services; the Canadian Association of Chiefs of Police; Kristen French Child Advocacy Centre Niagara; London Abused Women's Centre; Victimes d'agressions sexuelles au masculin; La fondation Katherine Beaulieu; Sue O'Sullivan, Federal Ombudsman for Victims of Crime; Sheldon Kennedy Child Advocacy Centre; the Alberta minister of justice, the Hon. Jonathan Denis; the Canadian Parents of Murdered Children and Survivors of Homicide Victims Inc.; the Canadian Bar Association; the Canadian Centre for Child Protection; the Canadian Resource Centre for Victims of Crime; the Canadian Crime Victim Foundation; the Canadian Association of Crown Counsel; the Canadian Coalition against Terror; the Canadian Centre for Abuse Awareness; the great Sharon Rosenfeldt, pioneer in victim services in Canada and founder of the Victims of Violence Canadian Centre for Missing Children; and l'Association des familles de personnes assassinées ou disparues. We can even add, albeit to a lesser extent, the Criminal Lawyers' Association.
Some aboriginal groups also came to express their opinion on the bill and to talk about the challenges that their communities faced. They all, in the end, support this bill.
I thank the office of the Nation nishnawbe-aski, NWAC, and the Pauktuutit Inuit women's association for their precious contribution to the work of the justice committee.
Bill C-32 has near-unanimous support. I want to quote my hon. colleague from Gatineau, the NDP's justice critic.
|I think everybody agrees that Bill C-32 is a good step. It's a step in a good direction. It has good at the heart of it.
In conclusion, I want to say that Bill C-32 had the unanimous support of all parties represented on the Standing Committee on Justice and Human Rights.
Ms. Françoise Boivin (Gatineau, NDP):
Mr. Speaker, I am pleased to rise in the House to speak to Bill C-32, Victims Bill of Rights Act, at report stage.
This charter codifies the federal rights of victims of crime to information, protection, participation and restitution. It also amends some related legislation. Basically, this charter is meant to grant rights to victims, who have often been the forgotten parties in our justice system.
We are at report stage, but it took eight years and countless photo ops and press conferences for the Conservatives to finally decide to introduce their bill. I would really like to believe the Parliamentary Secretary to the Minister of Justice when he said that they consulted 185 groups and 300 online submissions, but I am not sure they actually heard the message.
All the parties represented on committee agreed on the charter, although we tried our best to improve the charter so that it would produce the desired results for victims. My heart breaks for these victims. However, this is a first step, so we will take it. It is important to be positive in life.
That said, we could have done so much better. We already spoke about this charter at length at second reading. The parliamentary secretary has already named a number of witnesses, and I will not repeat that. However, I will say that about 40 people appeared before the committee over the many days we spent listening, reflecting and presenting amendments that we felt reflected the concerns of victims.
At least we had enough time to hear all the witnesses we called in. As an aside, of all the provinces only Saskatchewan submitted a brief in the form of a letter and only Alberta's justice minister provided testimony via video conference to share his arguments.
It is too bad, because victims groups, victims rights groups, and legal groups all agree: the responsibility of enforcing this bill of rights will fall to the provinces. We all realize that. It is clear that the provinces will bear the burden of codifying these rights to information, protection, participation and restitution.
It is too bad that we did not get opinions from all the provinces, but at the same time, as one witness in committee said so well, this suggests that the provinces are not very interested in this Canadian bill of rights.
More often we were told that this bill of rights simply codifies federally what is already being done on the ground. The victims rights groups showed us that this is applied haphazardly and in different ways in various regions across our large country. That might be the good thing about this victims bill of rights, but the provinces still need to be on board. As a crown prosecutor who testified before the committee wisely said, if every tribunal applies these rights differently, then we are no further ahead.
We could have done so much better. The government rejected a number of sound amendments. I will read a few.
I am especially saddened to hear that victims rights groups, or the victims themselves, came before the committee to tell us that the problem with the charter is that there is absolutely nothing binding in it.
We often rise in the House to criticize the government for its mandatory minimum sentences and the fact that it basically forces the courts to go in a certain direction and does not let them be the judge or use their own judgement and experience to hand down the best decisions. We have a charter that offers too much flexibility, to the point that just about anyone can do just about anything with this charter.
The message for the victims is sad, but also positive. The positive aspect is that we are finally talking about the victims and we are all united in this. Something has to be done, something has to happen. A heartfelt plea has been made and heard. We must not allow this to be forgotten, so that in three, four, five or six years we will not have to go back to the drawing board and do things right.
I want to give some examples of how this is not very binding. The bill of rights provides for a complaint mechanism. We cannot tell the provinces how to do their job. At the federal level, no one is quite sure how this complaint mechanism will work. To whom do people complain? What we are being told is that if someone files a complaint, the decision will not be binding, so as not to create problems. This means that we have a complaint mechanism, but ultimately, it will not do much.
I also want to talk about the right to information. I think it is rather absurd to say that victims have a right to information, since victims will have to assert that right. The amendments that the NDP proposed in committee were basic amendments. They had nothing to do with how the processes work. They did not affect outcomes or protections for the accused. They were in full compliance with the Canadian Charter of Rights and Freedoms, but at the same time, they made certain aspects of the bill of rights stronger, such as the right to information. All victims have the right to information, but not as it is currently set out in the bill of rights, which states that they must request it.
It is a matter of onus. The onus is still on the victims. Victims have to ask for their rights, whether it be the right to information or the right to be kept up to date. Things will be done only at the victims' request. In my opinion, the crux of this bill of rights is found at the very beginning of Bill C-32. That is the very heart of the rights set out in this much-touted bill of rights. Without that, it is just a bunch of statements of principle that do not amount to much.
The bill enacts a bill of rights and then states:
|| Every victim has the right, on request, to information about...
In clause 7, it reads:
|| Every victim has the right, on request, to information...
Clause 8 indicates:
|| Every victim has the right, on request, to information...
If we want to do right by victims, if we want to really give them rights, if we want to give them their rightful place in the justice system, then at some point we need to do more than introduce a bill filled with platitudes.
We are not objecting to Bill C-32. I agree with everyone that it is a small step in the right direction. I am pleased that the government accepted an amendment from the opposition, one of the amendments that I proposed. I am not trying to flatter myself because I feel as though my proposal was completely watered down. We were asking for the House of Commons committee, the Senate committee or the committees for both chambers designated or established for that purpose to examine the application of the enacted Canadian victims bill of rights two years after clause 2 came into force. The Conservatives changed the timeline to five years.
That is rather unfortunate, as is the fact that they did not agree to listen to the provinces, which were asking for a little more time to apply the bill of rights.
Money will be the sinews of war when it comes to the application of the bill of rights.
Mr. Sean Casey (Charlottetown, Lib.):
Mr. Speaker, I am pleased to have the opportunity to speak to Bill C-32, the bill on victims' rights. I am also pleased to indicate that the Liberal caucus will continue to support this legislation.
As the members opposite will fondly recall, supporting victims of crime has long been a Liberal priority. Specifically, I would point to the Liberal government's 2003 statement of basic principles for justice for victims of crime. This statement was collectively drafted by provincial and federal representatives to modernize basic principles of justice for victims.
As the Department of Justice states, those are the “basic principles continue to guide the development of policies, programs and legislation related to victims of crime. They also provide a foundation for the Policy Centre for Victim Issues' work.”
Further, in 2005, with the hon. member for Mount Royal serving as justice minister, the Liberal government announced new initiatives to support victims, including allowing them to apply for financial assistance to attend the National Parole Board hearings of the offender who harmed them.
I also want to acknowledge that victims' rights is an issue that has drawn multi-party support in the past. The Liberal government's progress built on earlier efforts from the 1988 Progressive Conservative federal government, which also worked together with the country's territorial and provincial justice ministers.
This is the sort of constructive engagement with the provinces and territories that many on this side fondly recall. This type of co-operation for the betterment of Canada has been eroded in recent years.
Bill C-32 contains a number of suggestions for helping Canadians who are victims of crime, violent crime in particular. This bill creates the Canadian victims bill of rights, which provides victims with a substantial number of legal rights.
Even though in many cases Bill C-32 simply codifies existing rights and practices, when it comes to helping victims, I am pleased to side with legal certainty.
What does Bill C-32 seek to accomplish? It seeks to create the rights to information and services that will give victims peace of mind during the criminal proceedings they will be involved in and thereafter. It will clarify the victims right to be protected, to submit a statement, and to obtain restitution from offenders. It will make it easier for vulnerable victims to testify, expand intimidation as a criminal offence, and amend an archaic statute in the Evidence Act in order to compel testimony from the spouse of an accused, a law that has already been subject to a number of exceptions.
However, though we generally agree with what the government seeks to accomplish, we wish the government would have followed the practices of former PC and Liberal governments by accepting advice on how Bill C-32 could have been improved for victims of crime. The committee process could best be described as a missed opportunity.
Bill C-32 is not a perfect bill. A significant problem is that it would increase the obligations on backlogged courts and the demands on prosecutors, without increasing the resources allocated to meet those obligations. In short, the bill would assign new work without providing new funds. Apparently, the government is operating on the assumption that our courts and prosecutors are underworked. Of course that is not the case, and the already overburdened provinces will have to pick up to the tab.
To the point on resources, I would like to share with members one example included in the Canadian Bar Association's recommendations, an example I shared with our Conservative-controlled committee in the hopes that it would seriously consider improving the bill. The example deals with the new requirement that prosecutors attempt to inform victims of plea deals.
I will read a quote from the Canadian Bar Association:
|| A typical experience for a front line Crown counsel dealing with the proposed legislative change might go like this:
|| A Crown counsel is dealing with 100 cases on a particular morning where the accused is scheduled to enter a plea. Lawyers for ten of the accused inform the Crown only that morning of a guilty plea.
|| The Crown has no time to contact victims of the ten accused to tell them of the proposed pleas. When the Court asks the Crown if victims have been informed, the Crown says no, in regard to the ten cases. The Court adjourns those cases, so the guilty pleas are not accepted. By the next appearance, four of the ten accused change their minds about pleading guilty and want a trial. Victims are then required to testify when they otherwise would have been spared the trauma of reliving their experience through vigorous cross-examination.
At committee I introduced an amendment to remedy this flaw in the bill, a flaw that without the provision of additional resources is likely to slow the administration of justice and traumatize a significant number of the victims we are all trying to help.
As the Canadian Bar Association recommended, I suggested that a victim only need be notified of a plea deal where there would be a joint submission on sentencing, that is, the deals that the prosecutors would more likely have made in advance. These are also the deals where the crown would be suggesting a particular sentence rather than a plea to a lesser offence.
What was the Conservative response? Before the Conservatives voted against this particular amendment of mine, the parliamentary secretary and the member for Moncton—Riverview—Dieppe said the following:
|| We're concerned that this amendment would lead to delays, and would place an undue burden on the crown prosecutor. The system has to function, and for that reason, we can't support this amendment.
The purpose of my amendment was to reduce the wait times this bill will create, but the Conservatives decided to vote against that amendment. I would like them to explain the logic behind that, but then again contradictions are notoriously hard to explain. That is just one of the amendments that I proposed.
In committee, the Conservatives rejected 18—that is right, 18—Liberal amendments that could have improved this bill. They did not reject the amendments because they were bad. They rejected them simply because they were Liberal amendments.
Honourable colleagues, this kind of behaviour is Parliament at its worst. With that in mind, let us look at other amendments the Conservatives rejected.
As I indicated in an earlier question at committee, we heard from a witness named Maureen Basnicki. Ms. Basnicki is a Canadian whose husband was killed in the 9/11 attacks. At committee, she explained that she had experienced difficulty in accessing victims' services because her husband was murdered by terrorists outside the country. She urged us to extend any lawfully available domestic rights to Canadian victims of crime that occur outside of Canada.
I would like to share some of her testimony with the chamber. She said:
||....perpetrators of crimes are still demanding their rights as Canadian citizens when they've been successfully prosecuted for crimes outside the country, and I want to bring balance to this. This is not a new step. It's new for Canadians, perhaps, but other countries do this, many other countries. Most other countries do.
After listening to Ms. Basnicki, I introduced an amendment to capture her unfairly overlooked constituency, to grant domestically available victims' benefits to Canadians who have experienced serious personal injury crimes outside the country, or whose family members have been murdered outside the country.
The Conservatives refused to include the victims of the 9/11 attacks in the legislation, and refused to amend it after hearing from Ms. Basnicki.
We also heard from a representative of the Chiefs of Ontario, who wanted to bring some balance to consider the unique circumstances of aboriginal victims in the justice system. All of the amendments proposed by the Chiefs of Ontario were similarly rejected.
Bill C-32 is not a perfect bill, but it is a good bill. It will do good work for Canadian victims of crime, so the Liberals will support Bill C-32 and endeavour to improve on these efforts when we form the next government.