Hon. Peter MacKay (Minister of Justice and Attorney General of Canada, CPC)
moved that Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts, be read the second time and referred to a committee.
He said: Mr. Speaker and colleagues, I am honoured to be here to take part in this important debate, second reading of Bill C-32, the victims bill of rights act.
As members know, this bill is to create a Canadian victims bill of rights and entrench the rights of victims into federal law for the first time in Canadian history.
Victims of crime have been an important priority for our government since our election in 2006, and our contributions to improving the victim’s role in our justice system is well known and well documented. It is our contention that there are numerous ways, which we will present through the victims bill of rights, to continue down the path of enhancing our justice system and the victim’s role in that system. The creation of the federal victims strategy as well as the Office of the Federal Ombudsman for Victims of Crime, in 2007, are examples of our government's commitment.
Further, the allocation of $120 million as well as $10 million additionally for child advocacy centres in 20 locations throughout the country are examples of victims' programs specifically, as well as other numerous victims' law reforms and criminal justice reforms intended to enhance the experience of victims in the law.
Last year, our government promised to enhance victims’ rights by entrenching or embedding their rights in a single law at the federal level. We are delivering on that promise through the creation of clear statutory rights to information, protection, participation, and restitution for victims of crime in Canada.
I want to unpack these concepts in more detail in a moment. Before I do, I want to emphasize again the inclusive effort to hear from Canadians.
My earliest days as Minister of Justice were spent consulting broadly and hearing directly from Canadians. In fact, we heard from more than 500 stakeholders through online and in-person consultations held across the country while developing this legislation. Most importantly, we heard from victims of crime themselves. Advocates, provincial and territorial officials, organizations, criminal justice associations, and criminal justice professionals, crown and defence counsel, law enforcement—all have provided views on this important legislation, participants all, and the Canadian victims bill of rights reflects that input, particularly those of provincial and territorial officials who have the important role and task of enforcement.
As well, we received a great deal of information and input during these consultations, specific to the reforms contemplated in federal, provincial, and territorial forums. Best practices from international, provincial, and territorial victims' legislation and programs were also contemplated. After much and thorough consultation and collaboration into this bill, we believe we have struck a very good balance.
I also want to recognize that each province and territory very much had that input, but we also drew from their own victims' services legislation unique to their provincial and territorial reality. All provinces and territories have legislation for victims of crime, which in some cases includes provisions worded as “rights”, such as a right to information, a right to consideration of personal safety, and a right to respectful treatment. The federal bill would not impede in any way existing provincial or territorial legislation but would, in fact, complement it or provide cohesion, while respecting constitutional divisions of power. It is important that we have this continuing and cohesive effort in building on the best of all efforts, across the country, to make the expression and inclusion of victims' rights more respectful, more user-friendly, and improve the lives of victims and their experience in our justice system.
Mr. Speaker, every victim deserves to have an effective voice and to be heard. That is why we have included a broad definition of victim in the Canadian victims bill of rights. All individuals directly affected by an offence in a physical, emotional or economic way would be considered victims.
The bill would also enable individuals to act on behalf of victims who are deceased or who are incapable of exercising their rights.
Again, the rights proposed in this bill apply to victims involved in the Canadian criminal justice system. I think it is important here to read specifically from the bill that definition of victim:
||“victim” means an individual who has suffered physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of an offence.
Clearly, the intention here is to protect Canadian citizens or permanent residents who are abroad but were victimized in Canada, who could also invoke their rights. Victims who are in Canada, or Canadian citizens or permanent residents could also invoke their rights in a case where they were victimized abroad, but where Canadian officials are investigating or prosecuting the offence in Canada. These provisions would ensure a broad, inclusive application of the rights in circumstances where there is a clear link between the victim, the crime, and the criminal justice system here in Canada.
Fully implemented, the bill would also extend rights to every stage of the criminal justice process: during the investigation and prosecution of an offence; during the corrections process; during the conditional release process, or parole; and while there are proceedings in the courts and before review boards in respect of an accused found not criminally responsible on account of mental disorder, or who is unfit to stand trial. However, the bill would also provide that the application of the rights cannot interfere with the police or crown prosecution's discretion and must be reasonable in the circumstances. In other words, this is a rubicon that we did not cross. Going back into the archives, this was in keeping with a parliamentary report entitled, “A Voice, Not a Veto”. That statement encapsulates the intent here.
Access to information was perhaps the most identified need by victims. Victims themselves, their advocates, and federal ombudsmen for victims of crime, and criminal justice professionals, such as the crown and police, often highlighted this need to ensure that basic information was flowing to victims and their loved ones.
Victims of crime seek information about the criminal justice system generally and their role in it. They also want specific information about their case and the decisions made by criminal justice professionals as the case moves forward.
This right to information would articulate that a victim has the right to meaningful information that affects them, such as conditions of release that pertain specifically to the accused in the case, or something as basic as the time, place, and date of proceedings taking place before the court that could impact on the victim. This would also include information about the criminal justice system, victims services programs, outcomes of criminal investigations and proceedings, and the status of an offender in the correctional system. The Criminal Code amendments that are proposed to implement this right would include the ability of the victim to receive copies of bail and conditional sentence or probation orders, physically ensuring that the victim is in possession of that information.
In addition, the bill proposes important changes to the Criminal Code provisions for plea negotiations, which is one of the more controversial elements, I suspect. For murder or any serious personal injury offence, the court would be required to ask the prosecutor if the victim had been notified of a plea bargain. For any other offence with a term of imprisonment of over five years, the victim could request to be notified of a plea bargain. The amendment does not give victims a veto over plea bargains. However, given the significant portion of cases with guilty pleas that are resolved in this fashion, this right to information would benefit a large number of victims at a key stage of the criminal justice process. I would suggest it would prevent any shock or further trauma to a victim to have that information in advance of any public announcement.
In order to help facilitate a victim's access to more information about available programs and services, one of the amendments in the bill would also require that Correctional Services Canada inform victims about the availability of victim-offender mandated mediation services.
Lastly, in order to enhance the information provided to victims, our government would create a single government website to make information about the Canadian victims bill of rights available to all Canadians and victims of crime.
Victim safety, including the enhancement of protection measures for victims, was also mentioned frequently by victims, their advocates, and professionals during the consultations. The desire to feel protected, safe from recrimination or retaliation, is an important right to recognize. Currently, there are numerous provisions in federal law to prevent or respond to harm to victims, but the creation of this right would build on a strong foundation and Canada's positive international reputation for the treatment of vulnerable victims, including in the courtroom.
The right to protection ensures that victims have their security and privacy considered in their interactions with criminal justice system officials. Proposed amendments to the code would broaden the availability of such things as testimonial aids, which are commonly known as “screens”, or closed-circuit television cameras to allow the victim to testify from a neighbouring room. This is also specifically to help protect victims from intimidation or retaliation throughout the proceedings and to provide that victims' safety and security would be taken into consideration through various means when making bail orders, for example, or when the offender were being released from custody.
Victims would be provided with access to a photograph of the offender at the time of the conditional release or end of sentence. This is a very practical and, I suggest, compassionate means to give victims information as to how they need to govern themselves or take protective measures. This is an important change for victims, and just one of the many changes that we would make to implement a victim's right to protection.
This right is strongly supported by many stakeholders, and victims identified this as an important need during the consultations, and we have listened. The benefits are numerous.
In order to provide meaningful participation and to give victims the sense that the criminal justice system will continue to respect their concerns and those of their loved ones, we wanted to underscore during the consultation that meaningful participation is also embedded in the bill. This is about recognizing the impact of victimization on the lives of victims and to help them understand what is sometimes a very complicated, foreign, difficult, and stressful process. The right to participation would allow the victims to convey views and to have those views properly considered by decision-makers when decisions are being made that affect them. This would be implemented through measures to clarify and broaden the scope of the victim and community impact statement provisions in the Criminal Code. Victims of crime have told us that they would support improvements to the victim and community impact statement provisions of the code.
For example, in this proposal, victims would be able to have a support person close to them while presenting their statement or community impact statement, and would be able to bring a drawing or photo or proximity of their loved one to the courtroom when presenting this statement. Again, this is a very compassionate, open-hearted way to allow the victim to draw comfort from proximity through these items. We have amendments to the Criminal Code that would clarify that a judge should consider those parts of a victim impact statement necessary to determine an appropriate statement.
When visiting a child advocacy centre, I saw something similar in intent. That was allowing children, for example, to have a pet or a stuffed animal, something that provided them comfort, with them during interviews with the police. Again, this emulates that same intention to provide individuals, child victims, comfort during what is inevitably a very stressful situation.
Also entrenching in this bill is the provision of guidance to victims on the creation of their victim impact statement through a mandatory form. These amendments would ensure that victims' voices were truly heard in the process.
The bill is also proposing important amendments to the purposes and principles of sentencing, to increase consideration of victims' views in that process. First, the bill proposes to reinforce the sentencing objective of denunciation in paragraph 718(a) of the code, by specifying that it is not only the criminal conduct that is being denounced, but also the harm to the victim and communities that has been caused by that conduct, which is a reality, I would suggest.
Second, the bill proposes to reinforce the sentencing principle of restraint in paragraph 718.2(e) of the Criminal Code that requires courts to consider alternatives to imprisonment where it is reasonable to do so.
Adding a requirement that the court also consider the harm done to victims and to the community would help to ensure there is a proper balance between the rights of offenders and those who have been victimized by offenders' behaviour. This would also bring sentencing principles in line with similar changes to the objectives of sentencing in paragraph 718(a).
In order to assist victims and allow them to choose how they would like to participate in the corrections and conditional release process, proposed amendments to the Corrections and Conditional Release Act would allow registered victims to designate a representative to receive information on their behalf or waive their right to access to information. We know that in some cases victims want nothing more to do with the process after the victimization has occurred, and I would suggest that another general collateral benefit to this bill is that it would give victims more choice and control over their lives in a very stressful period.
We have listened very carefully to the views of many people who work in the justice system, including, as I mentioned, provinces and territories, and we are responding to some of the criticisms of the bill. For example, some have said that the bill does not propose to make victims a party to the criminal trial or create a right to receive legal aid. It is our view that these two items would create additional complications and potential delays, which is completely counterintuitive to what we are attempting to achieve here. Further delays or complications are very much in our minds as we bring this bill forward.
That is one of the great complaints of many in the system, that the time it took to proceed through the courts caused greater re-victimization. Therefore, we have very much intended to include measures that would reduce the delays in criminal proceedings without in any way contributing to the type of delay that we know is sometimes endemic in courts in the country.
The bill’s proposed right to participation seeks to strengthen existing and successful approaches that provide opportunities for victims to actively participate in the criminal justice system, and contribute to more effective decision-making by police, crown prosecutors and judges.
Victims of crime have expressed significant concerns about the financial burden that often places them in real hardship. Many have reported that as a result of the crime, they were unable to work and yet faced significant out-of-pocket expenses to continue attending criminal proceedings or to receive counselling. In 2008, a Department of Justice study estimated that the tangible and intangible social and economic costs of Criminal Code offences in Canada were approaching approximately $100 billion annually, and approximately 83% of those costs were borne by victims themselves.
There has been discussion about crime rates falling in Canada. In fact, there are over two million crimes reported annually and, sadly, one of the more shocking figures is that there has been a 4% increase in child sex offences, offences against children, our most vulnerable.
The bill will help to alleviate the financial burden of crime for victims by enabling victims to seek a restitution order, which obliges the offender to pay the victim for costs incurred as a result of the offence.
Specifically, this bill proposes to amend the Criminal Code to require a court to consider restitution orders for all offences, to specify that an offender's ability to pay is not determinative in ordering restitution and to create, for accuracy, a mandatory form to help victims identify and claim their losses. As well, proposed amendments would specify that when any part of a restitution order is not paid, victims can have that order enforced as a civil debt.
Victims would be provided with assistance to help them enforce restitution orders through several program measures. For example, an electronic tool kit for victims would give them easier access to greater information about restitution; and financing and funding would be made available to the provinces and territories to develop their own restitution programs to help victims collect on those orders. This approach would enhance awareness and enforcement of restitution and provide victims with information and financial support. We know as well that many provinces and territories, in fact the majority, have the fine option program that will allow offenders to at least make some restitution to society at large, where they do community-type service.
In order to give meaningful effect to victims' rights by all players in our criminal justice system, our government is proposing that this bill have quasi-constitutional status. This would mean that the Canadian victims bill of rights would prevail over other federal statutes, with the exception of the Constitution Act, which includes the Charter of Rights and other quasi-constitutional statutes within our legal system, such as the Official Languages Act, the Privacy Act, and, of course, the Canadian Human Rights Act.
These other quasi-constitutional statutes will also exist on a level playing field with the Canadian victims bill of rights. As an example, courts must interpret the Official Languages Act in a manner that is consistent with the Canadian Human Rights Act.
If there is a conflict between these two quasi-constitutional statutes, the court would balance the rights in these two statutes.
During many of these consultations, we heard about the need to have enforceability behind the bill. We have provisions that pertain specifically to that in working with provincial ombudsmen and the discretionary judicial remedies that exist already.
Spousal immunity and other elements of this bill will, I know, receive due consideration. I would suggest that there is ample opportunity now to discuss the bill in greater detail as it proceeds to the House, and I look forward to the debate and hearing from members who are participating.
Ms. Françoise Boivin (Gatineau, NDP):
Mr. Speaker, I am pleased to rise in the House to speak to Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts.
First off, I am inclined to say that it is about time, since the government has been talking about this for awhile now. I know that the Minister of Justice likes to say that we decided to trivialize. This is not a matter of trivializing. I am simply stating the factual conclusions that everyone concerned about the issue of victims' rights here in Canada has already come to.
We are dealing with a Conservative government that has been talking about this issue for a long time and that has made serious promises in this regard. MPs who, like me, are members of the Standing Committee on Justice and Human Rights were able to hear from a number of victims as part of the debates on this issue held in the context of various law and order bills.
We sometimes heard very sad stories of a sensitive nature. This testimony helped us understand what needs to be done in terms of victims' rights and what victims need in certain circumstances.
The Conservative government has been promising to introduce this victims bill of rights for many years now. It has often dangled that promise in front of Canadians. The Conservatives have also held multiple press conferences in this regard, where they reiterated that they were in favour of introducing such legislation.
The official opposition is not trivializing. We are simply stating the facts.
If there is one thing that horrifies me, it is using already fragile individuals for political purposes. I do not want to impute motives, but these people have many, very specific needs. They have been speaking out about those needs for a long time. I will agree that the ombudsman for victims has already made recommendations.
I finally received Bill C-32 last week. I would like to digress for a moment to talk about the process. Bill C-32 was introduced on Thursday. Today, Wednesday, we are here in the House to begin debating the bill at second reading. It did not even take the Conservative government, through the Minister of Justice, even 24 hours to send out a householder to all Conservative supporters. I have good contacts who were able to show me that the Conservatives are already using the victims bill of rights to solicit interest in and support for the Conservative Party.
It always bugs me when people use something as serious as a victims bill of rights to generate political capital. I know that we are in the political business, but I think there are some issues that should not be used in this way.
All the same, I did thoroughly peruse Bill C-32. I wanted to give it a chance. The NDP always likes to give these things a chance. We always look at the bill and discuss it in caucus. At lunchtime today, I had the pleasure of talking to my colleagues about Bill C-32. I am not afraid to say here what I said to them: I was a little let down. When I read the bill, I felt that it did not really meet the needs of victims I had heard from.
It sounds good in principle, and we hope that something will happen in the courts, but it is not necessarily the guarantee or the cure-all victims thought it would be. The government did its very best to raise victims' expectations, and now I am sure they will be disappointed.
Kudos to the government for creating a victims bill of rights. Nobody in the House would be against that. I dare anyone to say that we are against victims. We brought forward some facts and we want to improve the process and the legislation. That does not make us anti-victim. On the contrary, we want to improve this bill to really meet the expectations of victims who expressed their opinion on this matter.
Could victims be disappointed in regard to certain expectations? Regardless of what the minister may think, anyone who was expecting the justice system to change, perhaps in terms of access to justice, will be disappointed, because there is not much in this bill to address that.
It does give victims certain rights when it comes to the possibility of being informed, being able to make comments, and so on. However, given how trial proceedings unfold, this bill is not necessarily the guarantee they were hoping for. This is not necessarily a mistake on the government's part. Rather, the mistake was letting victims believe that they could have that right. Indeed, people will be even more disappointed about that. I feel sorry for the first victim who invokes the victims bill of rights and then makes a particular demand based on that. Many courts of law will say that that is not how it works.
Let me say right away that the NDP will be supporting this bill at second reading. I hope we will have time to read it and study it thoroughly in committee.
At least there are ways to ensure that victims fully understand the limits and the scope of this bill of rights, so that they do not have any more false expectations than they might already have. Indeed, if they are relying solely on the headlines we see in some newspapers, they probably think they have acquired certain rights that they absolutely do not have.
There is another huge problem with this bill of rights. It has many limitations. Again, no matter what the minister says, the Conservatives inserted a section on complaints. In caucus, I used the analogy of the complaints system that exists in the provincial health care system. For instance, someone who goes to the hospital and is unhappy with the service they receive can file a complaint, and this has no binding effect on anyone. The bill of rights states quite clearly that, regardless of the context of a complaint, this does give the person exercising their right to complain any further legal rights. Therefore, this is not a legal remedy that would allow us to say that anyone who does not listen to victims could be penalized.
It is the same thing with restitution. The minister talked about it earlier. This is not the first time he has talked about this, but he made much of the fact that the cost associated with everything involving crime is somewhere around $100 billion and that the victims bear 83% of those costs. There is nothing in this bill, nothing in the budget, nothing anywhere to help victims where they really need it.
In committee, a mother talked to us about what happened after the murder of her daughter, who was in another province. Obviously, as the mother of someone who had been killed, she wanted to attend the trial. She had to pay her way to and from the courthouse. We know how long this type of trial can last. It cost her hundreds of thousands of dollars. Can I now tell her that thanks to the victims bill of rights, she can be compensated? There is not much hope for her.
Of course, members on the Conservative benches are going to say that when it comes to victims, certain things fall under provincial jurisdiction. However, there could have been a national agreement to send money to the provinces to provide victims the level of compensation they need. How many victims' compensation programs have been cancelled? How many programs are not really getting more money? The government is constantly throwing in our face the fact that it has invested $120 million. Just saying $120 million in the same sentence as the minister's $100 billion shows how inadequate all this is.
As far as restitution orders are concerned, I will provide an example for the victims watching us who think they will be compensated after a criminal trial. First, the judge will have the discretion to establish whether that is appropriate in the case at hand. Does the government really think that every accused person in our justice system has the means to pay restitution?
In life we have to be realistic. In some cases, my client is justified in suing, but the person to be sued does not have a cent. We can get the order we want, but we will not be able to execute it.
With respect to expediting the process, in a case where the court finds that, in the circumstances, it can order payment of a given amount by the accused who is found guilty, the order may not necessarily be automatic, even if it is desirable. We must not get peoples' hopes up. Otherwise, they will think that they do not need civil remedy. Nowhere does it say that this will be a court order. However, if there is an order, the person can have it executed before the provincial court that would deal with the situation at the civil level.
I like that because I have always found it ridiculous that victims have to testify in several criminal courts and have a parallel civil suit, which often has to start at the beginning. In fact, the civil proceedings must often wait until the criminal trial has been completed, and so forth. That just slows down the entire process.
For the victims listening to us, I repeat that they must not expect too much. There is no guarantee that they will automatically have rights that are as specific as those described by the minister.
We wonder about some of the bill's provisions. We will have to see what it is about. I was a little surprised to see the removal of the exception to the Canada Evidence Act concerning testimony by spouses. I am not against that, but I question the fact that the victims bill of rights is being used to make this change to the Canada Evidence Act. We shall see. I do not know why they are doing that all of a sudden. It could have been done in another way, but we shall see.
Furthermore, there is something that has been bothering legal experts, and I asked the minister a question about it but did not get an answer. I asked him whether he has confirmation that the Canadian victims bill of rights is consistent with the Canadian Charter of Rights and Freedoms, which takes precedence over this bill of rights and the Constitution.
Was any consideration given to testimony being provided under a pseudonym? This is allowed in some court cases for safety reasons, and I think everyone understands that. However, a number of these provisions already exist. They may not be codified as they are now in the bill of rights, but they already exist under the principles established by the statement for victims of crime that the federal government signed in 2003.
People are able to testify behind a screen for very specific reasons. The defence lawyer and the accused still have the right to see the persons involved, as long as there is no contact between them. The courts have some discretion in this regard.
As I said in the various panels I participated in after the bill of rights was introduced, I am very pleased—for once—to see that the government did not try to do what it loves to do with other bills, which is to take away the court's discretion to assess each case, since each case is truly unique. We must ensure that we achieve our goal without eliminating the fundamental concept of criminal law, which is the presumption of innocence.
In an article published in the National Post, Christie Blatchford, who is certainly no friend of the NDP, wrote a rather scathing criticism of the new Canadian victims bill of rights.
I would not want to misquote her, so here is the title of her article: “Victims need help? You must be kidding”.
In other words, it is tantamount to uttering a truism. It is true, but at the same time, if you read her article, you will see that many of these rights already exist.
In the courts, you often see crown prosecutors taking the time to explain the process to victims and talking to them about what they will have to get through. True, it is not the same everywhere. Still, it is also true that there is a major problem with resources in the courts considering the number of crown prosecutors and the number of judges.
These are very serious problems that this government should tackle if it does not want its whole law and order agenda to blow up in its face. Sooner or later, the government will have to be logical and provide resources. It will have to put its money where its mouth is.
That is the part that is always missing from government bills that talk the talk: they never walk the walk; they never give victims access to the resources they need in the courts.
Some do, sure. However, one of the major problems victims face is how slow the legal process moves. Until the government figures out how to fix that problem, it can put all of the principles it wants on paper, but it will never fix anything. The government has to improve access to justice so that the whole process can move faster. It has to ensure that neither the accused nor anyone else involved in a case has to wait too long.
Those who have some experience with criminal law know that victims often sit in the hall, waiting and feeling stressed because participating in the process is very stressful.
The minister is right when he says that not all victims will want to use this kind of service, but those who go to court—as witnesses, as victims, or just to ensure that everything is happening the way it should and to keep a close eye on every step of the process—would like to see justice served within a reasonable period of time.
When the minister appears before the Standing Committee on Justice and Human Rights, we want to ask him about funding. We want to know how much money will be allocated to implementing the measures in this bill on the Canadian victims bill of rights.
Victims need psychological help as part of their rehabilitation. I am not talking about rehabilitating the person who has been found guilty. I am talking about the victim who, at some point, must cease to be a victim and move on. We need to give them a hand, and I believe that the responsibility falls to each and every one of us.
The minister can stand up and say that we can fix the situation with the help of the person who has been convicted. That is all well and good, but that person needs to have the means to pay, which is not always the case.
In that situation, should the victim just be abandoned? Instead, should we, as a society acknowledge that it is up to us to take responsibility, even though the government is not keen on the issue?
It is our collective duty to help victims overcome difficulties, not only in relation to the trial and the various criminal stages, but also in relation to their personal lives, so that they are no longer in that group of people who take on 83% of the $100 billion price tag.
Hon. Irwin Cotler (Mount Royal, Lib.):
Mr. Speaker, I am pleased to have the opportunity to join this debate and address Bill C-32, the victims bill of rights act, which sets out a number of important rights for victims of crime, particularly with respect to information, participation, protection, and restitution.
For victims and their families, navigating the path of justice, from police services to the trial process to incarceration and parole, can be a very difficult ordeal, sometimes frightening and often costly. Victims may have experienced significant emotional or physical trauma as well as material loss, and most painfully, the loss of loved ones.
As such, it is critical that our justice system and related departments and agencies treat victims with respect and sensitivity, appreciate their concerns, and minimize their burden. To that end, the bill before us appears to be in most respects one more step in the right direction, and I commend the minister for this initiative.
I have certain concerns about aspects of the proposed legislation that I will discuss shortly, the substantive critique that the minister himself invited, but I am hopeful that these legislative aspects can be examined and, if need be, amended and refined at committee.
As I said, Bill C-32 is one more step because it builds upon past efforts across party lines, and as the minister mentioned, the initiatives by provinces, to improve the treatment of victims of crime within our justice system.
Indeed, the preamble of the bill references the Canadian statement of basic principles of justice for victims of crime, which was first endorsed by federal, provincial, and territorial ministers of justice in 1988 under a Progressive Conservative government, and updated and endorsed again under a Liberal government in 2003.
Shortly thereafter, as minister of justice, I was proud to introduce the Martin government's very first bill, which increased protections for children and other vulnerable Canadians against exploitation and abuse. In particular, that legislation facilitated the testimony of child victims and other vulnerable witnesses by providing for the more widespread use of testimonial aids and support persons, which the minister referenced in his remarks today. In fact, the legislation before us builds upon many of the very provisions that were enacted or enhanced at that time.
I was also pleased to introduce Canada's first ever legislation to specifically target human trafficking, the contemporary global slave trade with its multiply-affected victims. It is to the credit of this House that the battle to combat human trafficking and exploitation has been a multi-partisan effort. Indeed, the bill I introduced at the time passed unanimously, and in recent years I have been pleased to support efforts by the member for Kildonan—St. Paul and the member for Ahuntsic to build upon that initial legislation.
There was all-party support as well for a 2005 bill that enhanced the national DNA data bank by authorizing judges to order DNA samples from those convicted of a number of serious crimes, including child pornography and offences related to underage prostitution. The national DNA data bank was itself created by the Liberal government in 2000, and has proven to be a valuable crime-fighting tool that has helped to protect vulnerable Canadians and to bring to justice those who would do them harm.
As regards the role of victims within the justice process, as minister of justice, I joined with the hon. Anne McLellan, the then minister of public safety, to establish a national office for victims in order to coordinate federal initiatives for victims of crime and ensure that their perspectives would be considered in the development of policy and legislation, which is a principle and process enhanced by this victims bill of rights act. We also set up a fund to help cover travel and accommodation costs for victims attending parole board hearings.
Moreover, and again with the support of MPs on both sides of the aisle, we enacted important measures to improve the treatment of victims in cases where the accused was found not criminally responsible. Those measures included protecting the identity and privacy of victims, allowing for the oral presentation of victim impact statements, and permitting the adjournment of review board hearings if victims needed more time to prepare.
Therefore, as I have said, I am proud not only of my own party's record when it comes to crime prevention and victims' rights—and here I reference as well the restorative justice initiatives—but also of the many instances in the past when members of all parties joined together in a spirit of collaboration and good faith to advance these important objectives and ideals.
I note with regret that public safety and victims' rights have sometimes been used as a wedge issue in an attempt to paint opponents of legislation that may have suspect constitutional policy grounds as being soft on crime or uncaring toward victims. Yet, victims are best served when we as parliamentarians focus on their interests rather than our own.
Many of the past bills to which I have referred were subject to thorough scrutiny and amendment at committee, a fact indicative not of the weakness of the legislation but the strength of the parliamentary process. I hope that the debate and study of Bill C-32 will likewise be open-minded and robust, as the minister appeared to invite.
In that vein, I will now turn to the legislation itself and to some of its aspects that merit further examination.
First, the bill would establish a number of victims' rights, divided into the categories of information, protection, participation, and restitution. As I said, I fully support the idea of extending these important rights to victims of crime. Victims must clearly be made aware of the rights and resources at their disposal, and they must, if they so choose, be kept abreast of the justice process from the investigative phase to the potential ultimate release of the offender, and at every point in between.
As well, the security of victims must be a paramount consideration, including the protection of their right to privacy and protection from intimidation and retaliation. Victims themselves should be able to share their views with the appropriate authorities within the justice system and to have, as much as possible, a meaningful role throughout the justice process. Finally, victims should be able to seek restitution where appropriate.
These are important rights contained in the legislation, to which I am pleased to lend my support and my party's support.
My concerns with respect to this section of the bill, and here I again relate to the minister's invitation regarding substantive critiques, are related primarily to the degree to which these rights are, in fact, enforceable. It is one thing to proclaim that victims of crime have this panoply of rights, however important that in itself is, but it is quite another to give them concrete expression by devoting adequate financial and human resources and putting in place an effective organizational infrastructure for recourse and remedy.
For instance, a House of Commons subcommittee studying victims' rights 14 years ago found that victims sometimes had difficulty contacting the right person within a government agency to access information to which they were entitled, and they occasionally received different or conflicting information from various sources within the same agency.
I mention this not to cast blame on any of the individuals who work at the Correctional Service , the Parole Board, or any other agencies that make up our justice system but to underscore the extent to which the resources in this system are already spread quite thin. As such, saying that a victim is entitled to information, protection, restitution, or a role in the process is important, and it cannot be underestimated. However, it is not the same as ensuring that they, in fact, get that.
Moreover, for rights to be meaningful, there must be appropriate recourse available in the event that they are infringed. However, the avenue for recourse as set out in Bill C-32 is merely a requirement that federal departments and agencies establish internal mechanisms to receive and review complaints and recommend remedial action. Again, it is not clear whether additional resources would be allocated to ensure that the complaint mechanisms would be effective, but neither is it clear what recourse, if any, victims would have if such internal complaint mechanisms did not resolve a situation to their satisfaction. This potential lack of recourse risks aggravating, rather than assuaging, the frustration of victims.
In short, having raised the expectations of victims of crime, the government is now responsible for meeting those expectations. I hope to hear more from the government, as the minister himself spoke today, about the concrete ways in which it intends to do so.
I will now move on to the Criminal Code amendments contained in this bill. For the most part, these amendments seek inter alia to protect the privacy and security of victims and witnesses, to specify certain information to which victims are entitled, and to enhance the role of victims in the justice process. All of these objectives, as I mentioned earlier, are ones that I share.
There are, however, several clauses in this section of the bill that merit thorough examination at committee so as to ensure that their consequences are fully and accurately understood. To begin with, the bill proposes quite a broad definition of “victim” in the Criminal Code. The minister referenced this definition in his remarks.
The new definition would go so far as to include, in certain circumstances, an individual, and I quote:
||...who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person.
I certainly understand the impulse to extend the protection and rights of Bill C-32 to as many Canadians as possible, but there may be a point at which a definition becomes so broad that it can be rendered unworkable. For example, if everyone who has suffered emotional harm because of an offence committed against any other person is entitled to make representations during sentencing proceedings or at a review board hearing, as provided for by this bill, might there not be a risk of overburdening the system and slowing down proceedings to the detriment of victims themselves? At the very least, when experts come before committee, this would be a question worth asking and clarifying.
Another element of Bill C-32 that should be carefully considered is the expanded access to publication bans with respect to court proceedings.
The safety and privacy of victims and witnesses are undoubtedly vital concerns. At the same time, requests for publication bans require resources to adjudicate and enforce. It is not evident that our justice system is presently equipped to deal with this change.
Again, to be clear, I do not mean to suggest that the change is problematic in and of itself, but we must investigate its implications and cost consequences and ensure that the government is prepared to make the necessary resource commitment.
Bill C-32 would also remove the protection of spousal privilege such that it would be possible to compel an individual to testify against his or her spouse. As the minister himself mentioned in his remarks, numerous exceptions to this privilege have existed in Canada for many years. This is, nevertheless, a long-standing legal principle, and it will be important to understand its operation and use to fully appreciate the impact, positive or negative, of its removal. Again, this would be a useful issue for committee deliberation.
Another possible area of concern regards the payment of restitution by an offender to a victim. In particular, the legislation would prohibit a court from considering an offender's ability to pay when making a restitution order. This would be a significant concern in cases where the offender is impoverished and no work program is available to him or her while incarcerated, not least because the victim would be unlikely to receive the restitution that he or she has been awarded by the court.
This particular provision echoes the government's unfortunate approach to the victim fine surcharge, whereby offenders are required to pay hundreds of dollars at sentencing, with no allowance made for those who simply do not have the money. Since the mandatory surcharge has come into force, judges across the country have had to find creative ways around it, such as allowing many years for repayment.
Bill C-32 would make an important change to the surcharge, requiring that it be paid either within a period determined by the province or in a reasonable time after its imposition. Yet what is “reasonable” may depend greatly upon the offender's ability to pay. Indeed, to cite certain real-life cases from recent months, it is unclear what would be a reasonable period of time in which to expect a homeless Ottawa teenager or a drug-addicted refugee from Sierra Leone to raise hundreds of dollars.
The wording would likely lead to even more court cases on this front, all of which would cost taxpayers more than any amount they would receive from the payment of the surcharge.
Another aspect of Bill C-32 that must be carefully considered concerns the important changes to sentencing principles proposed in the bill, which the minister referenced in his remarks. For example, Bill C-32 would add the protection of society as a fundamental purpose of sentencing in the Criminal Code. Yet existing sentencing principles already include “the maintenance of a just, peaceful and safe society”. As such, it is unclear what the government is seeking to achieve with this seemingly redundant provision.
I hope that the justice committee will hear from criminal law experts about any possible effects of this change.
The bill would also add the denunciation of harm done to victims as a purpose of sentencing, an addition that raises similar questions, in particular how this denunciation would be achieved in a manner distinct from the denunciation of the conduct at issue and whether the impact of such a double denunciation would simply be to increase prison sentences across the board, regardless of whether such punishment fit the crime.
Finally, Bill C-32 would change the provision that underpins the Gladue principles of sentencing for aboriginal offenders. These principles currently require the courts to consider “all available sanctions other than imprisonment that are reasonable in the circumstances”, particularly with respect to aboriginal offenders, notably in recognition of the serious problem of the overrepresentation of aboriginal people in Canadian prisons.
Importantly, the Gladue principles do not automatically reduce an aboriginal offender's sentence, nor do they permit aboriginal offenders to escape serious punishment for serious crimes. The principles have, however, been upheld by the Supreme Court as recently as 2012.
However, Bill C-32 would appear to limit the application of the Gladue principles by specifying that the sentence must be “consistent with the harm done to victims or to the community”.
At the very least, this raises questions about the extent to which a sentencing principle meant to facilitate rehabilitation should be marginalized in favour of a more punitive approach. It would certainly be appropriate for experts in aboriginal justice to testify at committee on this point.
Nevertheless, in spite of these areas of potential concern, I will support sending the bill to committee for further study.
As I said earlier, I hope that committee members will engage in that study with the seriousness and responsiveness the subject demands and that the government, as it appears to indicate, would be open to amendments.
Before I conclude, I will turn briefly to measures not included in the bill that could be as important, if not more so, when it comes to respecting victims of crime and to preventing Canadians from becoming victims in the first place.
In our focus on domestic victims of crime, we must not forget that there are Canadians impacted in serious ways by crimes that have occurred abroad. In this regard, I remain troubled by the government's stance on state immunity. Thus far, it has acted to limit the number of state entities Canadians can sue for terror.
While I was pleased that the government adopted the Justice for Victims of Terrorism Act just a few short years ago, the government has only listed two states Canadians can sue. Even then, it did not initially seem disposed to helping Canadian victims get justice prior to American claimants seeking to enforce foreign judgments regarding Iran in Canada. There must be a more equitable process for victims than the current listing mechanism that places the entirety of its discretionary authority in the hands of the minister. While I will not dwell on this point, I do hope the government will reconsider its position on this issue. As well, I trust that the protection will be expanded to include not only victims of terror but also victims of torture, war crimes, and crimes against humanity, which I have referenced in a private member's bill otherwise before this House.
Earlier I mentioned the importance of keeping Canadians from becoming victims of crime to begin with, the prevention principle. Regrettably, the government has not put sufficient emphasis on prevention in its approach both to victims' rights and to public safety in general.
To reduce the incidence of crime, we must combat factors that we know are linked with crime, such as issues of poverty, addiction, and mental health. Efforts in this regard require significant resource commitments and a conception of public safety that goes beyond punitive measures.
This brings me to the final area of concern. Bill C-32 contains no provisions about data sharing and collection or about developing best practices and guidelines such that victims' rights are understood in a way that is meaningful and consistent. It might be appropriate to require an annual report on the bill so that we know how many complaints are raised with respect to each right and how many are resolved to the victims' satisfaction, while enhancing federal-provincial co-operation in this regard.
In closing, I am glad this legislation is before us. While I have some concerns regarding particular clauses, I will be voting in favour of the bill at second reading, and I encourage others to do the same. We all have a part to play in supporting victims of crime. While Bill C-32 could be stronger and more effective, and I trust that at the end of the process it will be, it is one more important step in the right direction.