JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Monday, June 15, 1998

• 0914

[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): That is the sound of power—my gavel. My name is Shaughnessy Cohen, and I chair the House of Commons Standing Committee on Justice and Human Rights. Interspersed among all of the people at this table are other members of the committee, whom I will introduce from time to time throughout the morning.

I want to welcome all of you. As you know, you're here to assist us in reviewing the role of victims of justice in the criminal justice system. Many of you have appeared before our committee before, but today you're not appearing before us so much as you're appearing with us.

• 0915

You will know that we come from different political parties, and that as a result of that, things can get pretty partisan in this room from time to time. Today I anticipate that will not be the case. I can't guarantee that won't be the case, but I anticipate that it will not be the case.

Many of you are here because of your jobs—because you are a member of the parole board, or because you're a judge, or because you're a crown attorney. We are not asking you to speak on behalf of your official agencies, and I know that some of you have reflected that concern. We've asked you to come because you have special expertise and because you can assist us in understanding the relationship between the victim of crime and the system.

The whole point of being here is to try to find a way to evaluate the present situation for victims in the criminal justice system, to find out what's working for victims, to find out what's not working, and to try to identify future directions for change.

We are also here to facilitate debate among Canadians and to focus the attention of Canadians on this particular issue, which can be a pretty focused issue for those who are struggling with it but sometimes doesn't have the kind of public recognition or public understanding that it needs to have.

As federal legislators, we'd like you to keep in mind that when we're discussing the criminal justice system in Canada, both the federal and provincial or territorial governments have legislative jurisdiction. Parliament has jurisdiction over the enactment of criminal law and procedure, but provincial and territorial legislatures deal with the administration of justice. We have to keep this in mind, because we want to be very careful as a federal committee not to overstep our jurisdiction.

Our staff have drafted for you three themes for discussion, which are meant to address in a systematic way the role of victims in the various stages of the criminal justice system. You have that document in the package that has been presented to you.

I'd like you to keep in mind, as the discussions unfold, the following. Under theme one—the first theme, which we will be introducing in a moment—most of the issues probably fall under provincial and territorial authority. We're not trying not to discuss that. We're simply trying to keep in mind, in terms of the final result, that there may not be legislative steps the federal government can take with respect to those.

The second and third themes, which we'll cover this afternoon and tomorrow morning, fall largely under the Criminal Code and the Corrections and Conditional Release Act. The Young Offenders Act is likely to be addressed as part of each theme.

Other issues may arise that will not fall squarely under one theme but will underlie all of them—themes like the emergence of restorative justice approaches to victims and offenders in the justice system; the establishment of a victims' office within the Department of Justice; the establishment of a victims' ombudsman to deal with the Correctional Service of Canada and the National Parole Board; and the enunciation of comprehensive statements of entitlement of victims within the criminal justice system.

Finally, if there's one thing we've learned so far—in terms of our process but also in terms of the content that's likely to come out today, and something that we really want to talk about—it's the need of victims to be communicated with and to have information at every stage in the proceeding. We've received that message loud and clear. We need your help in figuring out how we can best make sure that happens.

A couple of practical points. We'll take coffee breaks, and you'll see them in your agenda. We are being televised, and the funny thing about television is that after a while you relax and forget that it's there, so if anybody sees me scratching something, you should notify me.

Finally, I do have a gavel, and I will gavel you if you're going on too long. I won't necessarily recognize people in the order in which they indicate to me they want to speak, and I'll tell you why. In each of these sessions we find that some people will sit for a long time and not say anything and then suddenly decide that now is the time they want to speak. Others will have their hand up every three minutes. We're all the same; we're all human. So I'm going to try to exercise some discretion. If you don't like it, speak to me at one of the breaks and we will see what we can do about it.

• 0920

We really do want to make sure that we have a balanced perspective here and that we hear from everyone. We've invited you here because we know you have something to say and because we want to hear from you.

I should also say to you that there were a lot of people who weren't invited, not for any negative reason but because we felt that you were representative of all these various groups.

There are people in the room as well who can and will act as resource people. There are representatives here from the Department of Justice, from the minister's office, and also from the bureaucracy who are quite expert in these issues and who can give us some assistance.

So that you know the other characters at the table, with us is Phil Rosen, our senior analyst from the Library of Parliament, and Marilyn Pilon, who is also one of our researchers. Both Marilyn and Phil have a wealth of information, and if you have a technical question and you need some assistance, I'm sure they will help you.

Catherine Kane is from the justice department and knows more about this stuff than most people I've ever met, so we are very happy to have her here. She's very helpful, and I know she would be happy to assist you if you have a specific question to form the foundation of a comment you want to make.

I can't think of anything else I have to say, except that I do have my gavel, as I said, and I will use it.

Now I'm going to take a few moments to go around the table. I'd like you to introduce yourselves and to tell us which group you're with, not who you represent—you're here representing yourself—but what your job is or what your particular role is. I'm going to ask you not to take this opportunity to make a policy statement but simply to let us know how you got involved in this and who you are.

Go ahead. Gary Rosenfeldt.

Mr. Gary Rosenfeldt (Individual Presentation): Thank you, Shaughnessy.

My name is Gary Rosenfeldt. I'm the executive director of Victims of Violence. I've been involved in the victims' movement actually for about 17 years, since the murder of our 16-year-old son in Vancouver by Clifford Olson.

Mr. Arnold Blackstar (Individual Presentation): Good morning. My name is Arnold Blackstar, and I'm the director of community services for the Federation of Saskatchewan Indian Nations. I'm involved with the community-based restorative justice programming in Saskatchewan, which is the main reason I'm here.

Ms. Kathy J. Louis (Individual presentation): Good morning. My name is Kathy Louis. I'm the regional vice-chair of the National Parole Board. However, this morning I'm not here to represent the board. I come here hopefully to be a resource person to the committee on the restorative justice processes and healing concepts.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): I'm Andrew Telegdi, member of Parliament for Kitchener—Waterloo and member of the justice committee.

Mr. John Goertzen (Individual Presentation): I'm a concerned citizen in Niagara involved in an initiative taken to introduce victims' services to that area.

Ms. Lynne Kainz (Individual Presentation): I'm with the Ministry of the Attorney General's victim-witness assistance program. Our mandate is to assist victims and witnesses through the criminal justice process.

Ms. Colette Mandin-Kossowan (Individual Presentation): I'm from Edmonton, Alberta. I'm the chair of CAVEAT Alberta. I'm a victims' advocate. I lost four of my family members to homicide in 1991, and I've been involved ever since.

[Translation]

Mr. Richard Marceau (Charlesbourg, BQ): Richard Marceau, Bloc Québécois Member for Charlesbourg.

[English]

Mr. Peter Quinn (Individual Presentation): My name is Peter Quinn. I'm a program coordinator with an RCMP-based program in Banff and Canmore, in Alberta. I've also been the president for the last couple of years of Alberta police-based victims' services.

Ms. Joanne Jarvis (Individual Presentation): My name is Joanne Jarvis, and I'm the national victims' services coordinator with MADD Canada, Mothers Against Drunk Driving.

Professor Elizabeth Sheehy (Individual Presentation): My name is Elizabeth Sheehy. I teach law at the University of Ottawa, and I teach criminal law and women and the law. All of my work is in the area of women's equality rights in the context of criminal law and violence against women.

Ms. Rosalee Turcotte (Individual Presentation): My name is Rosalee Turcotte. I'm from Mission, British Columbia. I've been involved in victim issues since 1991 when my son, Ken, was murdered.

• 0925

Mr. Nigel Allan (Individual Presentation): My name is Nigel Allan. I'm from Nova Scotia. I've been involved in criminal prosecutions.

Ms. Susanne Dahlin (Individual Presentation): I'm Susanne Dahlin. I'm the director of the community justice branch, victims' services division for the Province of British Columbia. We're responsible for the victims of crime legislation in B.C., operational programs in British Columbia, violence against women and children initiatives, and the criminal injuries compensation program.

Ms. Janet-Constable Rushant (Individual Presentation): My name is Janet-Constable Rushant. I'm a victims' service worker in the Yukon territory with the territorial government.

Mr. Irvin Waller (Individual Presentation): I'm Irvin Waller from the International Centre for the Prevention of Crime, based in Montreal. I've been involved in victim issues for more than 20 years. I resigned from a fairly senior level position in the Solicitor General's office in the late 1970s because they weren't doing enough about victims, and I've been trying to get more to happen.

[Translation]

Mr. Paul DeVillers (Simcoe-North, Lib.): Paul DeVillers, Member for Simcoe-North and Parliamentary Secretary to Stéphane Dion, the Minister of Inter-Governmental Affairs.

[English]

Ms. Wilma Derksen (Individual Presentation): I'm Wilma Derksen, director of Victims' Voice, which is mainly concerned with telling the story and the healing process of victims. It's only one and a half years old, but I have been involved with victims' issues since my daughter went missing in 1984, 13 years ago.

Ms. Karen O'Hara (Individual Presentation): My name is Karen O'Hara. I'm executive director of Tearman House, a shelter for battered women in New Glasgow, Nova Scotia. We have a proactive early intervention advocacy program.

Ms. Brenda McDonald (Individual Presentation): I'm Brenda McDonald. My sister, Susan Klassen, was murdered by her estranged husband in Whitehorse, Yukon, November 2, 1995. Having witnessed the system firsthand as a secondary victim, I noticed the real lack of the role of the victim in the process. I see a lot of room for positive change for the victims throughout the justice system.

Mr. Bob Witman (Individual Presentation): My name is Bob Witman. I'm a program coordinator for the New Leaf Program in New Glasgow. Even though we deal with the offender, our program is victim-based in that we have as concerns the safety and concerns for the victims of domestic violence.

Ms. Joanne Vogh (Individual Presentation): My name is Joanne Vogh. I'm from Chilliwack, B.C. I'm a program participant for the Stò'-lo Nation and I'm here on the death of my sister five years ago.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): My name is Peter MacKay. I'm a member of Parliament from Nova Scotia, a member of the justice committee and formerly a crown attorney from the province of Nova Scotia.

Mr. Marvin Bloos (Individual Presentation): My name is Marvin Bloos. I'm the chair of the Canadian Council of Criminal Defence Lawyers. I practised criminal defence law for about 21 years. Our association is made up of defence counsel from across Canada.

Mr. Chuck Cadman (Surrey North, Ref.): Chuck Cadman, member of Parliament for Surrey North, British Columbia. I became involved in these issues after the murder of my son in 1991.

Mr. Rick Prashaw (Individual Presentation): Rick Prashaw, Church Council on Justice and Corrections. We're national but we do try to struggle to get into the local level or the community level and deal with all the harm caused by crime on all sides.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): My name is Michel Bellehumeur, and I am a member of the Bloc Québécois and have been a member of the Standing Committee since 1993. Madam Chair, one of my roles is to monitor any federal government encroachment in areas under provincial jurisdiction.

Ms. Michèle Roy (Individual Presentation): My name is Michèle Roy. I am from the Regroupement québécois des centres d'aide et de lutte contre les agressions à caractère sexuel and I am also representing the Canadian Association of Sexual Assault Centres.

[English]

Ms. Joanne Marriott-Thorne (Individual Presentation): I'm Joanne Marriott-Thorne. I'm the director of victims' services within the Nova Scotia Department of Justice. Our division is responsible for the programming that's specifically directed toward victims of crime within the criminal justice system in Nova Scotia.

Mr. Michael Lomer (Individual Presentation): My name is Michael Lomer. I'm a defence lawyer in Toronto. I've been practising for 17 years and I sit on the executive of the Criminal Lawyers Association in Ontario.

Ms. Priscilla de Villiers (Individual Presentation): My name is Priscilla de Villiers and I'm president of CAVEAT, a national victims advocacy organization that was started after the death of my daughter in 1991.

Mr. Steve Sullivan (Individual Presentation): My name is Steve Sullivan. I'm the executive director of the Canadian Resource Centre for Victims of Crime, a national lobby group for victims.

[Translation]

Ms. Arlène Gaudreault (Individual Presentation): My name is Arlène Gaudreault and I am the president of the Association québécoise Plaidoyer-Victimes inc. I have been involved in assisting victims and victims' rights advocacy since 1984 and I also teach victimology at the University of Montreal.

• 0930

[English]

Mr. John Maloney (Erie—Lincoln, Lib.): My name is John Maloney. I'm a member of Parliament for the riding of Erie—Lincoln, down in the Niagara peninsula in Ontario, and a member of the justice committee.

Madam Chair, if I might add, for those who have not already done so, there is a microphone that you can put to your ears, which also supplies interpretation from French to English and from English to French. I notice that some don't have this, and I think you'll find you can hear much better with it on.

Sergeant Randy Wickins (Individual Presentation): Good morning. My name is Randy Wickins. I'm the sergeant in charge of the victim services unit with the Edmonton Police Service. I've been a police officer for about 13 years, and for the last couple of years I have been developing a program modelled after the family group conferencing type of approach to dealing with crime. We're calling it community conferencing.

The Chair: Thank you.

Let me just emphasize what John said, that in a room like this the acoustics aren't great, and these devices will allow you to hear in your own language, but also the interpretation, and as well, you'll find that it magnifies the sound.

There will be other people joining us who couldn't be here promptly this morning, for travel reasons, and we will introduce them when they arrive.

Finally, let me say that for those of you who stayed at the Citadel last night, I had nothing to do with that fire alarm at 1 a.m., but I understand it allowed some of you to get together and have a chat, and that you all looked charming in your night attire!

I'm going to ask John Maloney, who is vice-chair of our committee, to introduce the first theme.

Mr. John Maloney: Thank you, Madam Chair.

The first theme this morning is the role and rights of victims in the investigation, charging, and prosecuting stages of the criminal justice process.

One of the problems we've been wrestling with has been in fact a definition of “victim”. We have different definitions in the Criminal Code, the Corrections and Conditional Release Act, and the Young Offenders Act. We're wondering, with your advice, whether we should be looking at a common definition, and if there is one out there that we could perhaps utilize, if we should then do so.

There is another area we're moving into. In 1988, the Canadian Statement of Basic Principles of Justice for Victims of Crime was endorsed by all the provincial and territorial governments and the federal government. Since then, all the territories and the provinces have put together victims' legislation, but they vary from jurisdiction to jurisdiction. Provisions are made for some victims' services, and victim informational needs are addressed, but they aren't addressed uniformly, and we're wondering if this should happen.

On page 3 of the information brochure we handed out, there are various themes and headings that we could address, and I'd like to turn your attention to the first item on that page.

1. If the legislation and programs at the provincial/territorial level are in need of improvement, what changes are required? Are there model programs/legislation that should be emulated across the country?

The Chair: As you're reflecting for a moment on this paper that was prepared by Philip Rosen, our senior analyst, I suspect that some of you already have comments on this.

I'm going to ask that we focus for a minute on the definition of “victim”. Sometimes defining terms is the best way to move forward, and I would ask, if anyone has any instant thoughts on that, that you just signal to me so that I can recognize you; otherwise I'll just keep talking. I can talk for hours.

I see you want me to keep talking.

Part of the problem in terms of defining “victim” is the inherent conflict between what we'll call the rights of the victim in this process and the rights of the accused. I know there are people at this table who would say bluntly that you do not, under our system of justice, have someone who can be called a victim until the accused is actually convicted of the offence.

This I would think is problematic for people who are indeed victims of crime and are approaching the trial process. This seems to me to be the fundamental conflict in the first theme that arises.

Michel.

• 0935

[Translation]

Mr. Michel Bellehumeur: I am going to tell you what a victim is under the Quebec Act Respecting Assistance for Victims of Crime. Section 1 states: "In this Act, the expression "victim of a crime" means a natural person who suffers physical or psychological injury or material loss by reason of a criminal offence committed in Quebec, whether or not the perpetrator is identified, apprehended, prosecuted or convicted. The immediate family and dependants of a victim are also considered victims."

I think that that is a good definition of a victim. This is what Quebec wants to achieve through its Crime Victims Compensation Act.

[English]

The Chair: Thanks, Michel.

Michèle Roy.

[Translation]

Ms. Michèle Roy: There is another point of clarification we would like to make and we would like the committee to take it into account in its work. The majority of victims are women, but that is being completely ignored in the current discussions. I work with women who are victims of sexual assault. I work alongside women who work in shelters for women who are victims of domestic violence and with women who are victims of harassment in the workplace, in their living environment. Just think about all of the incidents in the Armed Forces that we have been hearing about lately. Many women are victims of crime against persons because they are women. That element should be reintroduced in studies, whether it be as part of the analysis of the problems faced by victims or in terms of the consequences, the means that are in place and the proposed legislative amendments. This type of analysis and proposals for action that take it into account must be included.

[English]

The Chair: Paul DeVillers.

Mr. Paul DeVillers: Madam Chair, just on that point, does our researcher have any statistics on the demographics of victims? Have we done any work on that, such as how many are male, how many are female, their age categories, etc.?

The Chair: I think there is some research on that, although it's not at this table right now.

Perhaps Professor Waller could assist us with that. Could you?

I forgot to tell you that if I don't get responses, I'll just start picking on people.

Voices: Oh, oh!

Mr. Irvin Waller: In regard to data as to who the victims are, there is some information from the Stats Canada surveys, the so-called victimization surveys, and also from the survey on violence against women, but I don't think there are very good data in this country. Many other G-7 countries do regular surveys that show who the victims are of a whole range of crimes, including special surveys relating to violence against women. I certainly think it would be a good thing to see more of because it's one of the ways of giving this issue greater visibility.

On the more general question of the definition, I unfortunately don't have a copy of the UN declaration here, which has a definition somewhat similar to the Quebec definition but has a second paragraph that talks about issues of particular types of victims. Women clearly make up a very important group, but I think there are other groups of victims who shouldn't just be put in the same category as all victims. There's generally a need for us to think not just about one definition but about one that introduces the sensitivity issue.

I want to make a third point because I just feel so strongly about it. I'm amazed that there's nobody here from a senior level of the RCMP and I'm amazed that in all your introductions you never once mentioned the RCMP Act. It seems to me that if there's one thing that you as federal legislators can do to make a difference to victims of crime in this country, it would be to make changes in the RCMP Act that would include your definition but would include some statement about what their goals and objectives are. That could have a ripple effect right across this country that would be way more important that what happens in the corrections act.

• 0940

I'm not saying you shouldn't be worrying about those, but if there's one agency that more victims go to it's the police. A lot of them don't, of course, which in my view puts into question the sensitivity of the police. On this first item, I would like to see much more discussion of what police could be doing and what could be done in terms of not just training but a mandate requiring...with some accountability at the policing level.

The Chair: Let me just give you the definition of victims from the declaration of principles that was adopted by the UN General Assembly in November 1985. Canada is a signatory to this:

1. “Victims” means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.

I think you're right. It's a fairly general definition.

Mr. Bloos.

Mr. Marvin Bloos: I'm just going to add that under that declaration, in paragraph 2, it seems to me that we could also include members of the families of perpetrators in the definition of victims, because conviction for a crime can have a devastating effect on the family of the accused. Wives and children and families can be destroyed, particularly where the offender is sent to prison for a long time.

The other note of caution that I would sound is my concern that we don't slide into any presumption of guilt. As Madam Chair indicated at the start of the meeting, there are some who would say that you don't have a victim until a crime has been fully established in court beyond a reasonable doubt. And of course we're discussing traditional principles of the criminal law, the purpose of which was not to vindicate the victim but to determine whether an offence was committed and, once that was done, to determine the fitness of the sentence.

Much of our discussion today will, I'm sure, centre on what a fit sentence is and what role a victim has to play in that. But at the pretrial stage, in my view, the role of a victim has to be carefully considered and perhaps restricted, because the moment you make the victim a stakeholder in the outcome, through the potential for either economic compensation or psychological compensation, you then have to consider the type of bias that might be engendered. One thing that both history and experience has taught us is that even impartial witnesses or witnesses who have no stake in the outcome can be quite mistaken in their evidence. If we create a system where we now enhance the role of “victim” beyond that of “ordinary witness”, we also run the risk and the great danger of introducing bias, which must be taken into account by a court.

The Chair: Thank you.

Rick Prashaw.

Mr. Rick Prashaw: After listening in communities to various people harmed by crime, one of our concerns as a church council is to remember who does the defining and for what purposes we are defining this. If it is Parliament doing the defining, there may be one reason, and if it is victims, there may be another. It may be a police officer in terms of laying a charge. There are big-picture questions around society and community, and if we only squeeze in the definition of a victim to meet our professional needs, whatever those needs may be, then it ends up that victims, offenders, and communities all end up in pieces, which has happened over and over again.

Begging the question of what a victim is, I would add this: who is asking that question and who is defining it? Once we define it, we exclude people.

• 0945

Ross Hastings spoke last week at the Atlantic crime prevention meeting on repeat victims. That got me thinking. Michèle asked this morning why certain groups of people are repeat victims. Why, according to class and race and gender, are there certain people who are filling up that label of victim? We need to ask those kinds of questions.

I think it's good to have a dialogue, but again, I'm not naive; I know we cannot remain in the big picture. There does have to be a system responding to these needs. But as soon as you narrow it down and exclude people, once again you are invalidating many people on the offenders side who have been victims, and their families, and on the victims side who are repeat victims.

Again, they are asking that what has happened to them be addressed. We are trying to slot it right away, right from the beginning, and squeeze them into a systemic way of looking at that. And that can be really problematic.

The Chair: Peter MacKay.

Mr. Peter MacKay: I certainly keep in mind the comments made by Mr. Bloos with respect to the presumption of innocence. I think that always has to be in the back of our mind. But a person becomes a victim at the point in time when their mother, sister, daughter or themselves have been injured or violated. That's the point in time when someone becomes a victim, in my opinion.

The legal system tends to be very sterile, and then the state or the police agency that is investigating it takes over. That's when victims start to feel excluded or ignored. To quote Steve Sullivan, they don't get the dignity and respect they need.

Hopefully, what we are going to get some insight into during the next day and a half is how we can take some of the sharp edges off the system. We would not necessarily say to victims, yes, you're going to tell us how to run our investigation, or, you're going to tell us whether we should charge or not charge or proceed in a certain way, but you're going to be consulted, you're going to be kept informed of what's happening, and you're going to have input into what decisions have to be made—maybe not the definitive final say, but you're going to have input into what takes place, because it has affected you, it has already affected you. The moment the crime takes place, the effect begins.

The Chair: Priscilla de Villiers.

Ms. Priscilla de Villiers: Somebody said very acidly to me about a week ago that we've become a nation of victims. I think the word “victim” is used loosely, is used without thought. The word has become diminished and it's become a catch-all for anybody who has a grievance or anybody who touches any type of system.

If we do nothing else in these discussions, and if you do nothing else, this definition is critical. I have to say that very soon after my daughter was murdered, I was completely bewildered to hear of the victim/offender and to understand that it meant that the offender was a victim and had to be regarded in that light. To me it caused enormous confusion.

As I have gone through the system, I understand the thinking, but I believe we have to get back to the idea that if we presuppose there has been hurt committed, it is a crime. Who committed the crime is for the courts to decide.

As Peter said, there is an obvious victim, and it must be clear right off the bat that this person at that point in time is the victim. If at some future date that person then commits a crime and says it was because of a crime committed against him, and he then becomes a victim because at that point he is being victimized, he can then be termed a victim.

I feel there are too many victims here. I hope you are as bewildered as I am by that little dissertation of mine, because that's how I felt.

I have to tell you that this hurt is perpetrated daily. I read to my amazement in the newspaper the other day that a criminal lawyer who has recently been released from penitentiary was claiming to be a victim of the system. The fact is that he had been committed to heaven knows how long in the penitentiary. I thought, here we are using that word again.

• 0950

What we need to establish I think right off the bat is who the victim is and at what point do you become a victim. There has to be a clear understanding both in the press and in the courts and for the person themselves as to where they fit in. I'd suggest that Rick's point is extremely important, and that is if we define who and what the victim is under the Criminal Code, will that fill the broader social needs of that term? I do think a lot of the anguish, a lot of the confusion, and a lot of extremely esoteric discussion rages around this point. All it does is obscure the fact that we have somebody who has been at one end of a crime who needs to be looked after and who needs to have the consideration given to this at that point. I think that's what I'm going to say.

The Chair: Thanks, Priscilla.

Peter Quinn.

Mr. Peter Quinn: I was just following up on the comment about the potential for bias within the system if people are felt to be a victim too early in the process. I think this is probably one of the problems that I see on a day-to-day basis, that people need assistance right after something happens. It's not a month, two months, six months, or a year down the road when the courts decide that this person is a victim. What I see is that they need the assistance straight away.

One of the things that I find is really beneficial for people is having services available to them. To me, the provision of services and the provision of education just give people a realistic idea of what's going to be happening through the process, when it's appropriate for them to have input, and what input is appropriate throughout the process. I find that when I work with police officers or when I work with crown prosecutors who do that, the people involved, the victims, are extremely happy with the process because they've been involved and they've been included.

I think just simply not having those services available on the fear that there's going to be potential bias is probably one of the things that hamstrings the system and causes secondary victimization, which a lot of people comment on and a lot of people feel really strongly about. I've spoken to many people who I've dealt with who say it's not what happened to them that was the worst thing; the worst thing was when it went to court. This is why I see the need for that education. A lot of education needs to be done even before anything happens.

The Chair: Thank you.

Steve Sullivan.

Mr. Steve Sullivan: To pick up on Priscilla and Peter's point, whether or not the individual who murdered Priscilla's daughter is identified, her daughter is still dead. She's still a victim and she still suffers; she still requires services and she still requires information. I think you need a definition that's broad enough to incorporate, in the term being used, primary and secondary victims. If someone has been assaulted, the person's a victim. If someone's child has been murdered, that person is a victim. That's the kind of definition you need, something that's broad enough to incorporate those types of people.

At different stages in the process you'll define what rights and accesses they have, but we're talking about the beginning of the process, before guilt has been determined. People aren't asking for anything that will take away from the rights of the accused. They want information, they want trial dates—they want those types of things. That's not going to interfere with someone's right to be presumed innocent.

The other point is that criminal injuries compensation programs, for example, don't require a conviction or don't require the perpetrator to be identified to compensate people for harm suffered.

I would pick up on Mr. Bellehumeur's point that the Quebec definition is a good one. British Columbia's definition is also a good one. They're very broad. They're catch-all types of definitions. I think that's the kind of definition we want to be focusing on in Canada.

The Chair: Arlène Gaudreault.

[Translation]

Ms. Arlène Gaudreault: Madam Chair, I am a bit surprised that we are discussing the definition of a victim in 1998, as I feel that we currently have all the tools necessary in the various pieces of legislation. The Act Respecting Assistance and Compensation for Victims of Crime was mentioned. Quebec is not the only province that has legislation on assistance for victims.

• 0955

All of the other provinces have enacted legislation on assistance for victims that contain excellent definitions of victims and that include notions that are of concern to many parents, namely the issue of the victims' immediate family. There is also an excellent definition in the UN declaration as well as in the recommendation from the Council of Europe. The Parole Act, which was amended in 1992, also provides a very good, broad definition.

I think that the problem with the definition is a false problem. The way that people are treated based on this definition is much more problematic. We should not waste too much time on agreeing on a definition, because that definition exists. We would perhaps be better off, over the course of these two days, focussing on concrete problems that victims face in the justice system, with respect to parole. For example, since 1988, there have been several amendments to the Criminal Code, including some that deal with victims of crime.

In 1983, an important report entitled Justice for Victims of Crime was published. There is a wealth of information. I do not think we are starting from scratch, but we need to look at what is working and what is not working. Do the amendments to the Criminal Code really work? Were they put in place for victims? Are victims well treated at all stages? What are the obligations of the various parties, be it the police or counsel?

With all due respect, I would suggest we should not waste too much time on the definition, because I think we already have all the tools we need.

[English]

The Chair: Thank you.

Susanne Dahlin, and then we'll move on to the next area.

Ms. Susanne Dahlin: I'd like to say that I agree that the definition should be very broad-based at the beginning, and I think what we really should be focusing on is the support services we're offering.

I think we should provide as much of an open-door policy as possible. Information, support, and advocacy seem to be the three basic things that those who are victims of break and entries or robberies require. As we move up to the level of personal injury victimization, then we require specialized services, specialized training, and have to deal with those victims in a much more intense way. Those are the kinds of issues we should be focusing on, but I don't think we should be keeping anyone out of the system.

When the response is court-related services, our police-affiliate victim assistance—it's true—is probably the biggest program that accommodates the greatest numbers of victims. As we move through that system to those victims who actually go finally through the court-based process, that tends to be a smaller number of victims, and again more specialized services are required for that.

The Chair: Thank you.

I want to then ask you to focus for a moment—because we're slipping into it in any event—on the types of services that should be available.

At page 3 in the document, there are some specific questions that are asked. Rather than going through those specific questions, I'm going to try to open the discussion up so that we can, I hope, hit everything but leave it fairly loose for right now.

What we're looking at here is what programs are available, what programs seem to work. Do you know of a program that is working really well in your community? If you're a victim of crime, was there something that happened in the system for you that either really worked or really didn't work? On the other hand, if you're from a government agency or from a policing or other area, are there suggestions you have that would make things better?

I think what we're trying to do here, because we are in an area of provincial jurisdiction, is to brainstorm and to demonstrate what's working and what isn't working out there, more as a matter of public education and as a way of the parliamentarians who are here getting their minds around what is available in the country.

Is there anyone who wants to begin? Well, Lynne Kainz, since you and I are both from Windsor, why don't you tell us a little about how your office works?

One of the things we've heard is that there's a huge discrepancy in the province of Ontario between communities, so perhaps you could tell us a little bit about what your office does in Windsor and what other agencies are involved.

Ms. Lynne Kainz: I would say that Windsor is unique in that the number of community services working with victims works very well together. We work very well with the Windsor police victims' services.

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When we're looking at victims' services, we must recognize that there is a continuum of services and that each and every service available is very important, beginning with the police victims' service program that provides a 24-hour crisis response. Victims need immediate crisis intervention. I think it's crucial that we have those kinds of programs available within our communities.

There are many crimes committed against victims where charges are not laid, and those people need assistance as well. I think the victims' service 24-hour response is able to assist those victims. Once charges are laid, the victims certainly would be referred to programs such as the victim-witness assistance program.

Once again, I think it's very important to be involved very early on, so you can explain to the victim the terms of release, where the offender has been charged, in order that they may know right from the onset those conditions that very often have to do with them with respect to non-association and that kind of thing.

It's very important that victims understand their role now that they are victims of crime. Most people don't have any experience with the criminal justice system. They're very overwhelmed. It isn't their decision whether or not they're going to be involved in the system. Once you're a victim of crime, you become a witness, and I think it's crucial that they receive information immediately.Our program is very concerned with their emotional well-being, and we would be making referrals to community agencies that would offer them counselling around their victimization.

Information is key. Certainly, when we speak to victims and we ask them what is most important to them, being kept informed of what is going on and kept informed of the court dates is very important, and, as I said, the conditions of release and having input and involvement. Certainly, it's important that they feel their voice is heard and that they have that opportunity to express what it is that is of most concern to them. If that person is to be released, what is the victim most concerned about?

We liaise with the crown attorneys, so certainly if the victim is going to be involved with having to testify, we would arrange that they meet with the crown attorney. Our program doesn't discuss any evidence. Ours is to provide information. But I think it's critical that we have resources to make crown attorneys available. If you were an accused, you would have that right available to you, although I know there have been some limitations with the cutbacks. But I think it's imperative that we afford the victim that same opportunity, to meet with crown attorneys who will be doing their case.

We assist as well with victim impact statements. They're critical. Certainly, throughout your involvement in the criminal justice process when you're a witness, during that process you aren't able to talk about how the crime has impacted on you. It has a profound impact on you, and victims need to know and be aware of their rights to provide a victim impact statement and receive information and direction with respect to completing a victim impact statement where there has been a conviction.

Our program certainly would assist them with that kind of thing. Our involvement ceases once the matter is no longer before the court. When it does, we make sure they have information about the parole board in order that they may have continued contact with the board.

The Chair: I'll go to Brenda McDonald and then to Randy Wickins, but just one of the questions I have and I think other parliamentarians would have is how we as a society deal with front-line work. What happens when the assault is committed? Who's there on the ground to assist that person, and what is the role of the police or other community agencies? We should be thinking about that.

Brenda.

Ms. Brenda McDonald: Just through personal experience, because the crime against my sister happened several hundred miles away, the only role the police played in Edmonton was to notify us of her death. It was months before we even knew of a victims' services centre up in Whitehorse, Yukon. It certainly wasn't a case where we could walk into their office and receive any kind of assistance. No one in Edmonton came forward, and we certainly didn't know where to turn.

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I firmly believe that if we had received early intervention in my family, I would still have my father. I don't mean that he has passed away, but this has affected him so severely that we have lost him. We were all dealing with it differently and we needed somebody with expertise to come in and deal with everybody's different emotions, assist us in what the process was going to be.

I spent 14 months leading up to the trial making phone calls to police, to crown attorneys, to anybody who could give me information. It was something I shouldn't have had to do. Still to this day, I am making phone calls and trying to find out information.

There is no one place to go in this country for a person like myself, to get the information I need through appeals, through victims' issues, through court processes, victim impact statements. There was nobody to assist us with those. We were mailed a form. We were told to only discuss what it had done to us emotionally and financially.

Those victim impact statements, when it came time to have them in the court—I wanted to read mine. I was told we would be laughed out of court. I didn't think anybody would find a victim impact statement amusing. I believe that maybe the lawyer or the crown prosecutor felt it just wasn't appropriate.

The only comment from the judge was that because my father had been a policeman, he would understand the low sentence. My father felt he was there as a father, not as a police officer.

It was a very frustrating experience from the beginning, and I'm still frustrated two and a half years later that our voice, my sister's voice.... Whether or not Mr. Ralph Klassen was convicted of this crime, she was dead and she was a victim, right from the instant she was strangled. To insinuate that there's not a victim until there's a conviction is something I have to completely disagree with. She was a victim, and so were we, in the early hours of November 2, 1995. We still are to this date, and we've never received any type of assistance.

The Chair: Ms. O'Hara.

Ms. Karen O'Hara: Tearman House is a community-based advocacy program. We provide shelter and outreach services to abused women, but two years ago we were funded through our provincial Department of Justice as an advocacy program. We see ourselves as very appropriate for this funding because we're already very linked. We're already providing services to abused women.

Our main but not exclusive point of entry is through the municipal police or RCMP. While they are at a call, at a home where a woman has been assaulted, they call us and give us the information, police incident number, the woman's name, date of birth, information about the children, and what they are going to do with the person who assaulted her.

We then call her. Because of our limited budget, it is a telephone crisis intervention at that point. We call her, make a safety plan with her, and tell her that our advocate will be in touch with her within 48 hours.

We serve three counties in Nova Scotia. On Monday morning, our advocates are in touch with the woman and they are then available to accompany her to whatever services she thinks she requires. It's client-centred and client-directed. They will go with her to provincial court, family court, income assistance, child welfare services, health services—whatever she identifies.

We work on a team approach. We work very closely with the police and with victims' services, which is a government-funded department. Gillian is here and she can speak to that.

We link women up with victims' services. We meet with the police monthly in all three counties to make sure we have received all the referrals. We feel it's a holistic approach. The women gain a trust in us, and then it's very easy to link them either to come into the shelter or to our outreach programs for women. We also have outreach programs for children, because as you are all aware, children are very traumatized by these events as well.

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The Chair: Thanks, Karen.

Randy Wickins.

Sgt Randy Wickins: Thank you, Madam Chair.

In Edmonton I'm in charge of the victims' services unit, which has about seven of us paid staff and then about 160 community volunteers who are well trained. They receive training monthly throughout the year.

As many people have pointed out already, victims need assistance in a variety of forms right at the very beginning, and I don't know when they end. They end when the victim says it's over. It shouldn't stop at any certain point. It's as long as these people need help in whatever that is.

I'm a strong proponent of restorative justice, and it's really difficult, with the laws and the rules that exist in the court system today, to address any victims' issues to any serious degree.

We've heard what the role of victims and victim impact statements is in court. We've developed a conferencing program in Edmonton that involves the victims, whoever they are. Victims can be, I suggest, offenders' parents and siblings, all of the victims' extended family, and other people as well. We get the victims and the offenders together and the victims have a say, both in the process they go through and in deciding what needs to happen for everyone to feel a little bit better, for some harm to be repaired, for things to be made a little bit better.

The victims decide what the harm is. The victims decide what needs to happen to make them feel better, make them feel that some sense of justice has been achieved. That's really difficult to happen with the rules that exist right now in a courtroom.

So I suggest there needs to be an easier way for those cases, where the victims want, to be diverted outside of court, pre-charge, post-charge, post-conviction, at varying points in the system. Victims should play a role in deciding what happens right at the very beginning.

Thank you.

The Chair: I see that got a few people going here. Let me go to John Goertzen.

Mr. John Goertzen: Part of a victims' service program that's been recently instituted in the Niagara region falls under the Solicitor General, who is largely responsible for our funding.

There are two points I'd like to make. First of all, the police of course have been made totally aware of the service, that it's available, but utilization is really a long way from where it needs to be. It comes back to this: so much of what we do, the legislation and the acts, can be there, but if it's not implemented and enforced, it really isn't of a lot of value.

Just as a reinforcement of that, an incident occurred last week where an elderly woman was handcuffed, her house was ransacked, and she was abused. We weren't called in; we found out about it later. The response from the police was, “Well, she went through the concentration camp in Germany, so she's in essence used to this kind of thing.” Those are the kinds of things.... So first of all, the police need to access the service initially.

Secondly, suggesting what Randy has, when does the victim stop suffering? When does the hurt stop? The Solicitor General's program, which falls under the VCARS model, is a one-time intervention. As I think Brenda was saying, we do in fact go in immediately at the time of the occurrence to try to stabilize the situation, with a team of volunteers who are fully trained. They give emotional support and practical assistance and then provide referrals to community agencies where longer-term care is required.

The program unfortunately is intended to be just that, an initial intervention. As Randy indicates, that victimization goes on for a long time. That program does not in fact allow for that, and that needs an enhancement.

The Chair: Colette.

Ms. Colette Mandin-Kossowan: In 1991, when there was a multiple homicide in my family, we had absolutely no access to or provision of victims' services of any kind. This was in Alberta. The crime happened in a different county from the one we lived in, and there was no contact between the two. We had a police liaison who gave us information about what was going on, and that was it.

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Since then there's been a large growth of victims' services in Alberta, right across the province, to try to fill in all the gaps, but still multiple concerns arise from victims we work with on a daily basis.

The first one is, as John said, the sharing of information from the officers to the victims. Often, months after a crime, a victim has not heard of victims' services or doesn't know what it is. Sometimes it's because they've been told and they're so traumatized they forget.

The second one is location. Whether or not a victim receives services is dependent on where they are; the demographics of their area and how well it's served by victims' services; whether the police service supports that victims' services unit and how much support they give it; whether the community supports that victims' services unit, because they all have start-up grants, but they're responsible for raising the funds for their own victims' services unit, so if the community supports it, they're well-moneyed and they can provide more programs and referrals; the number and quality of volunteers; and the training.

The training right across the country and in Alberta is inadequate. There's inadequate education in victimology, from the bottom right to the top, of anybody who ever comes in contact with a victim. The training is ongoing, but it's piecemeal. The training courses are restricted in attendance and they happen once a year. That training trickles down.

We're hearing that many instances of re-victimization by victims' services happen because of one or many of these things. Some kind of information infrastructure has to be in place so that victims even know about the services that are provided, because many, many times they don't.

The other one is a long-term change of attitude. As long as people believe victims don't need services at the onset and a continuum of services throughout the aftermath, the services won't be provided.

The Chair: Okay.

Michel Bellehumeur.

[Translation]

Mr. Michel Bellehumeur: I think that we have a justice system that traditionally revolves around the accused. The system has been like that for years. However, based on data from 1970, we have started looking more closely at victims and stopped considering them as the main witnesses in these cases. Behind the witness, there is a person, a human being, etc.

Since 1970, several Canadian provinces, including Quebec, have enacted legislation in this regard, but the legislation is not well known. I think that to a certain extent the provinces must be responsible for publicizing their programs. The police also share part of the responsibility. They are perhaps not necessarily doing what is expected of them.

I'm going to give you some numbers, because I like to have numbers in mind to see what is going on and to get a better grasp of the problem. I'm going to give you numbers for Quebec only, because I am a member from Quebec and I am interested mainly in Quebec.

For 1995, slightly more than 500,000 crimes reported to the police were identified. Of these 500,000 crimes, 49,200 involved violence, which represents roughly 10%. Out of that, roughly 3% were homicides, and to respond to the woman who mentioned it, just over 54% of the victims were women. So the majority of crimes are committed against women.

What I am getting at? In 1995, under Quebec legislation regarding assistance and compensation for victims of crime, 2,112 people received monetary compensation, which represents twice as many recipients as 1985. People are increasingly familiar with the legislation and it is being applied more and more often, but there is still a lot of work that needs to be done for it to be fair for victims.

I agree with almost everyone who raised that issue. I don't want to be a "party pooper," but it comes under provincial jurisdiction. It is up to the Quebec National Assembly and the other legislative assemblies to publicize their compensation programs. For goodness' sake, keep the federal government out of that.

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In response to Ms. Gaudreault, it is mainly under the third part of our study that we will have work to do as federal legislators, because I am a federal MP. To date, we can talk about victims, about programs that are not well known and about a whole host of other things, but I do not think that we will be able to influence provincial legislators to get them to improve the application of the Act. I am eager for us to get into an area that is under our jurisdiction so that we can make some progress. I understand the problem, and I sympathize with everyone.

However, I am quite powerless with respect to what must be done to improve the application of the Act, and I don't want us to play big brother to the provinces and to tell them what to do with the money they collect themselves. If the federal government has money—Madam Chair, you are perhaps in a position to know that—and it does not know what to do with it, it can immediately decide to send that money to the provinces so that the provinces can spend it properly, in accordance with their legislation.

[English]

The Chair: Thank you.

Susanne Dahlin.

Ms. Susanne Dahlin: Victims come into the system at different stages, and we have to be ready to respond to that. They may come in through transition house services. They may come in through emergency departments of hospitals, often, in sexual assault cases. They may come as a result of crisis intervention, when police are responding to those. We have to provide the kinds of services that can respond to those types of victims and be there for them.

One of the pieces that someone mentioned is that victims have a need to know what rights are available. That's really important. No one can exercise a right if they don't know what their rights are. Right at the front end of the system, something has to happen—they have to be given an information card or something that indicates what their rights are and how they can find out what their rights are. Often they can't hear it right at the initial stage, but if they have something they can take away with them, they can then phone back and exercise their rights.

One of the other pieces I wanted to address was something Irvin Waller stated. When we're talking about getting victims services and referring them appropriately to services, one of the pieces we're facing is some of the privacy issues. We're not able to direct or give victims referrals to other agencies because of some of those privacy issues. Victims should have a choice in whether or not they want to be referred and they should be asked that, but some of those are saying they want it in writing, and that's preventing us from actually referring victims appropriately to services they can receive in a community.

The Chair: Wilma Derksen.

Ms. Wilma Derksen: Thank you.

I would like to add that we also need independent services, even though I strongly agree that we need police and police victims' services and witness programs. The issues can be quite complex when victims are estranged from the police, even from the beginning, as in my case, where we were primary victims in the case of my daughter missing, but we were also being investigated at the same time.

There are a lot of these kinds of conflicts during the beginning, so victims need independent organizations that they can have confidence in. They need to know that what they're saying won't be leaked up to the organization.

I also want to say there's a need for long-term care. I'm now dealing with a woman who is only telling her story and only has the ability to tell her story 20 years later, even though we've worked with her for five years. It's long. And with murder it's never over, so we're looking at a lifetime of care.

The Chair: Thank you.

Rick Prashaw.

Mr. Rick Prashaw: You asked what works. I can't point to one place, but there are elements around the country and even beyond the borders of the country that are worth remembering.

Brenda's story, which she shared this morning, gets me thinking of how we in definitions might too narrowly exclude folks, though not intentionally. Often the community for the victim is neither the place of prosecution nor the place of offence. So victims' services need to fan out to real places for these victims. That's a two-way street to me. It's from institutions, but it's also from the community in partnership. Churches and many, many groups need to learn a lot with respect to how we continually blame victims, how we subtly and not so subtly send messages telling them to get on with their lives. Victims need places to be able to sort this out and talk.

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As for the Truth and Reconciliation Commission, I would not give it carte blanche benediction, but one thing I do like about it, besides the formal inquiry, is this. I heard a commissioner talk about how they go around from village to village. He called it finding soft places to do the hard issues. These are places where people could talk.

Wilma said that as for the long-term stuff, we're checking in with victims, not just getting back to victims. If you're getting back to victims, then already victims have been left out. Victims have to be part of the journey.

We are continually saying to them that they said no to mediation or to a direct encounter today. That may not be the answer six months from now in different places. It may be so, and that's certainly fine, but it may not be that they're in a loop.

Genessee County, in northern New York State, has a lot of elements of a program that is direct, intentional, and victim-driven in many respects whereby they are continually asked what their needs are in communities. They get places to be able to tell their stories. These are some of these restorative approaches that Randy talked about.

Physical structure is another element whereby places are safer and friendlier for victims. They're in the community. They're not necessarily always attached—that's not necessarily a bad thing—to a police station or court, but to friendlier places. Welcoming places are what some people are also mentioning. It can be a place that can be able to validate where they can tell their story and foster real dialogue. One person told me that he may not always tell me the facts, but they are his facts or his expression of the facts. Not enough folks want to hear that expression.

The Chair: I'm going to cut the list off now. There are four more people to hear from. Then we will take our break and come back. I know the parliamentarians are going to be brief and briefer.

Peter MacKay.

Mr. Peter MacKay: Madam Chair, I want to say that one of the first things that has to be said is that this type of forum and information exchange goes a long way to moving toward a standardization or trying to find out what's working in various communities across the country. I want to commend you personally for arranging this forum.

With that said, this may be the first sign of partisanship coming out, but one thing is that the Department of Justice and the Solicitor General have to prioritize funding. That goes without saying.

In order to help victims, one thing that can be done is the prevention of crime. One way of doing that is to improve the funding to front-line police officers. Also, looking at the volume of cases being carried by various crown prosecutors around the country is another area that will assist in this overwhelming issue that we are dealing with today.

With that said, as for the education element—this has been touched upon by various individuals who testified here—if we can improve education to the point where prosecutors, police officers, and judges are sensitive to the needs of victims, this will also improve overall our justice system.

Sensitivity training would perhaps take away some of the institutional callousness that exists. Make that mandatory. Whether that necessitates having directives or legislative change, I'm not sure. I guess that's what we're here to discuss. There should be some sort of directive that would require those major stakeholders in the process—this means crown attorneys, legal aid lawyers, judges, police officers, and front-line workers—to take a course that makes them more sensitive to what victims are going through. I think this would help tremendously.

Look at basic things. The information required by victims early is sometimes the simplest thing. Where do you sit in a courtroom? What does a plea bargain mean? What do the dropping of a charge or a “lesser included offence” mean?Can they get restitution or compensation for babysitting or time off work? Can they get bus fare to attend court? Those very basic pieces of information, if they are provided early in the process, reduce somewhat the feeling of being revictimized by the system.

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The Chair: Thank you.

Richard Marceau.

[Translation]

Mr. Richard Marceau: You can see that I was a bit uncomfortable, seeing that in the federal Parliament we were going to be discussing issues which, by the very definition that you have been given in the document prepared by Mr. Rosen, were under provincial jurisdiction.

However, when I read theme 1, I told myself that the role and rights of victims in the investigation, charging and prosecution stages of the criminal justice system were well-chosen themes for a dialogue on what is happening in the various provinces. I expected to see documents describing what is being done in one province or another so that all stakeholders interested in this issue can go home and say: "Here, we do it this way, but in province X, they do it better or there is a program that we had not thought of."

After the break, we could move a little more in that direction and say: "This is how we do it in Saskatchewan, Alberta or elsewhere." Each participant could take notes and take them home with him or her and bring them to the attention of the various provincial or territorial organizations that are responsible for these types of programs. I think that a forum like this one is an opportunity to exchange information. It is not an opportunity to try and play big brother in areas that are not under federal jurisdiction.

[English]

The Chair: Thank you.

Let me say that we do have some of those documents and that we can make them available.

Michèle Roy, I haven't ignored you. I know you're there. You wanted to say something earlier.

Michèle.

[Translation]

Ms. Michèle Roy: You will see that there is some logic to what I am saying. I said that the majority of victims were women. I did not want to deny the fact that children, seniors, handicapped people, and people of colour are also victims. In our opinion, these people are all victims, first of all because of inequality, because of an imbalance in power between adults and children, women and men, seniors or handicapped people and people who are in a better state of health, etc. That is what is at the heart of the matter, and that is what we try to work on with the women we accompany.

The women we see are women who are recent victims of sexual assault, rape or who, in their childhood, were victims of incest. We try to empower them. When we talk about what is relevant for victims, we must bear in mind that women and victims at all levels need information, but also respect, they need to be respected for what they say, they need to be believed and considered. What they have experienced must be taken into account.

Yes, they need to be told where to sit and what will happen in court, but can we tell the victims that they will not be victimized again when they go to court, when their trial takes place? Can we tell them how they may react when counsel for the defence makes a statement about them that is completely discriminatory, when counsel plays on their sexual past or insinuates all kinds of things about them? Can we assure these women that they will respected in their action? I think that is what needs to be included in our principles and practices. Victims can be provided with information and financial compensation, because that is part of reality, but first of all we need a system that will do them justice in all of their actions.

Recently, in the Ottawa region, a young 15 year-old girl had to go to three different places before being entitled to a rape kit examination. She was sent from one place to another and told that the procedure was not done because the doctors were too busy, etc. That is unacceptable.

In the Quebec region, a women was assaulted by four men. It was acknowledged that the men had had sexual relations with her and that she was completely drunk, but the trial was based on the fact that she had given consent. She was completely drunk, but she could consent to being assaulted by four people. That is unacceptable.

Yes, we need information and financial compensation. We need to know if child care services will be reimbursed. Of course, all of that is relevant, but there is a lot more to it. When we accompany women, we try not to victimize them even more or to not put them once again in a position of dependence or inequality with respect to us. We have the right to expect that from our justice system. We need to empower them and respect their choice.

[English]

The Chair: Thank you.

I have Steve Sullivan, Joanne Thorne, and Priscilla de Villiers, and then we'll break.

Steve.

Mr. Steve Sullivan: Thank you.

There's been some discussion about the area we're discussing now being a provincial issue. A lot of the services and the rights, or the victims-of-crime legislation, are definitely provincial issues.

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I hope the discussions and the recommendations or the report that comes from this forum will be shared with the provinces, not to direct them as to what to do, but hopefully to educate them a little bit on the ideas that are shared here.

One of the questions that's asked here is, is there model provincial legislation for victims that should be emulated across the country? The answer is yes. Quebec has excellent legislation. Ontario has good legislation, as does B.C.

What we've recently learned in Ontario is that as good as the legislation for victims is, it's really not worth the paper it's written on if there are no enforcement provisions. I refer to that because the Ontario government is now being sued by three women who are saying that their rights were violated under that victims of crime act.

The point is that unless the provinces decide that they're going to put some teeth into the legislation and put some enforcement behind it, all the rights they talk about in that legislation are really useless.

There may be some things that the federal government can do in the Criminal Code, and it might be worth exploring whether or not the code could be amended to direct judges, for example, at the sentencing stage, to ask the crown, “Have you talked to the victim about doing a victim impact statement?” It is a right, under the Criminal Code, but many victims are never told they have a right to do an impact statement.

Maybe before we accept a plea arrangement, the crown should be asked, “Have you discussed this with the victim? Has the victim been consulted, and has he or she been given a chance to do an impact statement?” Many victims don't want to do them, but I think if we're going to give the victims the option and the choice and the right, we need to make sure there's a mechanism whereby they understand that that right has been communicated with the victim.

The final thing is about the danger—that I see, anyway—in talking about different types of victims and whether there are more female victims or whether certain groups are more vulnerable. I think the services and legislation we talk about should be universal, because there are male victims and there are female victims. The common factor is that they're victims, and whether or not they're male or female, young or old, they need help and they need protection, and that's what we should be talking about, I think.

The Chair: Thanks, Steve.

Priscilla.

Ms. Priscilla de Villiers: Thanks. I'd like to pick up on what Steve said. The problem with the victims' rights legislation—apart from the fact that there's a no-cause clause universally across this country, which means that if we don't feel like doing it or if we don't have the resources we will not uphold it, from the point of view of the government—is that the legislation, certainly in Ontario, was not supported by any process that would see to its enactment.

One of the big problems, and you've been hearing about this today, and I think this is throughout the system, is that there's no clear chain of responsibility. When we talk about the right to information, for example, which sounds like a very simple phrase, absolutely nowhere does it state who is responsible for providing that information, or when, in what manner, and how.

So we often find there are gaps. This carries right through, I would suggest, policing, to a certain extent. And when you have witness support systems, VICARS and all the other I think really laudable attempts to fill some of these gaps, we don't have an advocacy role.

As we heard, Lynne can talk about the disposition of a court, and what you're to expect in court, and where you're going to sit, but she may in no way discuss the case or the evidence. If the crown refuses to do it, or is not available, or thinks it has happened—as you'll be hearing more about soon in the courts—the victim is once more caught between two stools.

So I think the step that really needs to be taken is to look at a very clear way that these rights, which have been so hard-won, and which are now philosophically agreed on, can in fact be carried out with a minimum of fuss.

I think from the federal point of view, what Irwin said is really imperative. And I think wherever there is a federal act that will influence provincial acts, such as the RCMP Act, that is where the federal government can play a very strong role and certainly set the standard.

What I've noticed in many of the documents—the Corrections documents, the parole documents, stating what victims rights are—is that there is no.... We need to show what the process is and then what the victim's role is.

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In France, they're producing documents like this, where, for example, police have a duty to inform the victim at all times, let's say, and in regard to the victim, this is their role, this is what they must do. Do they phone the police and ask for it? Do they wait for the police officer to come? Do they go to the victim-witness people?

In other words, the divisions between what the victim has to do, should do, must do, and could do, and what the official does, are very separate, such that I don't think either has a very clear understanding of what the other's role is. I have to say that I would be very surprised if most people in criminal justice in this country have read the victims of crime acts that are there. I think there is basically a very vague understanding of what they are proposing.

I do believe we need to continue to try to fill these gaps, and I do believe there is a very strong role the federal government can take. You will know better than I what acts there are that do set standards and that do possibly govern behaviours. Certainly the CCRA is one. That is federal in intent, and one can only hope that it trickles down to the provincial jurisdictions.

I learned to my cost seven years ago when my daughter was murdered and I was told that the federal government made the law and the province did not administer it. The federal government told me that the province administers the law and that the federal government just makes it. In other words, there's an abrogation of responsibility to see that the law is translated into fact. I believe that if nothing else the federal government should take a very strong role in getting together with the provinces and trying to ensure that the spirit of the law and the spirit of the Criminal Code or any other acts pertaining to victims are in fact translated into practice in the provinces.

The Chair: Thanks, Priscilla.

Madam Marriott-Thorne, and then we're going to take a break, only half an hour behind schedule.

Ms. Joanne Marriott-Thorne: Thank you.

Karen O'Hara referred a little earlier to our system in Nova Scotia in relation to victims' services and I just wanted to elaborate a little bit. In Nova Scotia, we've adopted the principle that there are many deliverers of services to victims of crime and that there should continue to be many deliverers of services.

We have specialized services, as Karen has referred to, and Tearman House is a good example of that. We also have police-based victims' services for early intervention. In relation to the victims' services division, our offering is interaction with the criminal justice system, so we do provide information from the time it can be, from the time of the offence, but predominantly from the time the charges are laid, all the way through, including until the resolution of sentence, on issues such as section 745 hearings and the whole gamut. It's a system-based perspective. All of our programs are province-wide and we have 1-800 numbers to ensure accessibility.

But I think the delivery of direct services is just one level of the service that it is important to offer. In every province and territory in this country there is a victims' services division. I think one of our primary roles is to ensure a presence for victims within the criminal justice system. We still have not adopted a victims' component or victims' services as a legitimate division or component within the criminal justice system.

And when I hear about bias—that's been referred to a number of times—in the system, I think there's a real need for a victims' lens on the criminal justice system in order for us to be able to interpret how victims can be better served, without compromising the rights of the accused.

But that demands a certain way of looking at things and a certain way of seeing. I think that's what these provincial and territorial victims' services can bring that is quite unique, as well as doing coordinating and bringing cooperation among services.

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One issue I think of, which was brought up a little earlier, is restorative justice. Restorative justice is an example of how the criminal justice system in this country may be poised to make a major change in terms of the way it operates.

I think this is not in fact the case in every province and territory, but I know that in Nova Scotia victims' services have been at the table from the very beginning in developing restorative justice programs, so a victims' perspective has been at the table in the development of those kinds of programs.

If those programs are going to work—and I think there are many cases indeed where victims can be better served by a restorative justice kind of forum rather than the traditional system—they have to be planned, operated, and implemented truly taking into account the victims' perspective. That shouldn't happen five miles down the road when the program is already half planned. They have to be involved at base level.

The Chair: Thank you.

We are going to take a little break now in room 238-S, where coffee will be served.

Over the break I hope you will speak to me about how you think our process is going, and I'd like you to start turning your mind to what I think is a thornier issue for us, and that is the issue of how great a level of consultation there should be with victims by crown prosecutors and by police as the case is proceeding.

We are not at this point, until after lunch, going to go into the actual trial situation, but in terms of laying charges and whether charges are going to be laid and that kind of thing, what kind of information should be given to victims? And what kind of interaction should there be with the crown attorney and the police?

We should start thinking about that. I know there are still two people on the list from this morning's session: we will get to you. Have a good break. We will be back in about 15 minutes. I'll make up this time over the lunch hour.

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• 1115

The Chair: We're only an hour behind our schedule. We are doing so well.

We are still on theme number one, the role and rights of victims in the investigation, charging, and prosecution stages of the criminal justice process. This should overlap to a certain extent this afternoon's theme. Having said that, I know I have two people left from earlier who want to speak. I will get to you in a minute.

I want to ask Nigel Allan, who's sitting quietly, if he could tell us a little about—again, we understand that you are not speaking for your office, Nigel—the relationship between crown attorney and victim, about how you deal with that and how one could overcome some of the problems I know you know victims feel in that relationship.

Mr. Nigel Allan: Madam Chair, unlike other people here, victims are but one component of what a crown attorney has to address when presenting a case before a judge. It is a very important component, but nevertheless, just one of many. The difficulty in dealing with a victim is trying to make them feel that they are more than just one component of a rather complex and seemingly unfeeling system.

Nevertheless, we have to impress upon them that we are not their advocates. We are not committed to be that. We operate in a quasi-judicial capacity, which is designed so that we present the evidence in a fair and unbiased way, supposedly to be disinterested in whether there is a conviction or an acquittal, but just to present fairly the evidence before the judge so that he can make a decision on guilt or innocence.

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That legal nicety often escapes the sensibilities of the average person. They judge these things using their common sense, and they're not very impressed by the restrictions we have on us by the law and by the system. When you deal with a victim, you try to establish in a very short period of time a rapport with them. You let them know you have an understanding of what it is they're going through, that you have certain responsibilities to the system broadly and to the victim as a victim of crime, and that you will try to make their journey through the justice system as comfortable as possible. At the same time, you don't mislead them; you explain to them that it is not a comfortable journey, that the basic premise of our system is that you are innocent until proven guilty, and therefore it's the accuser who goes on trial. The accuser takes the stand. The accuser is the one who is cross-examined, not the accused. Those kinds of things are quite devastating to a victim, and when you try to explain evidentiary rules to them—you do this out of courtesy because it escapes their comprehension, by and large—they are not particularly impressed by the law of the land as it excludes evidence that would seem to be relevant to them and to their cause.

In explaining the sentencing process and the range of sentences that exists in Canada for particular types of offences, I've never found someone who is the victim of a serious crime to be particularly impressed by the sentencing process or the length of the sentences that are levied. Again, it's difficult for the crown because the victim often holds us responsible for the state of the justice system and why it works the way it does. That's not the case, and we don't necessarily support the way it is; we just have a duty to try to inform them of how it works and that they aren't being singled out. They're not being brutalized or being given a difficult time by the justice system because of their particular circumstance. It is a system that exists and is applied universally to all people. It's not a pleasant journey through the justice system. You try to impress upon them that we want to hold people accountable for the crimes they commit and we have to do that within the rules and the guidelines set down by our criminal justice system.

The Chair: I noticed, just because I'm the chair and I have the gavel, that there are three people at this table who have had experience as crowns—Mr. Mackay, myself, and you—but you're the only presently practising crown.

I want to ask you a couple of other questions that I hope will set the stage for this part of the discussion. Is it helpful to you to have other agencies involved as a liaison between you and the victim? Is it helpful to have Lynne Kainz from the victim-witness program, or Susanne Dahlin's program in B.C., or Joanne Marriott-Thorne's program in Nova Scotia? Are these kinds of agencies helpful to you in terms of doing the best job you can to prosecute?

Mr. Nigel Allan: Certainly they are. In days gone by that was a function we had to embrace as part of our responsibility as a crown attorney. We had to contact them, we had to interview them, we had to do the court orientation while at the same time keeping an arm's length between the victim and ourselves and the job function we had. This is very helpful from our perspective. The initial contact then comes well in advance of the court schedule. We're run by a docket.

This is another thing victims don't understand, that there are many cases and there are many victims. They like to think they're your focus and when they find out that you have many responsibilities and many people who you deal with, dozens on a daily basis, and they're not even in your office alone, there'll be a line-up waiting.... We have victims' services assisting us in explaining that set of circumstances, initiating a contact, and preparing them in advance so that we can launch right into a meaningful discussion of the circumstances and the case that's before the court without having to do the base work. So you can almost immediately begin to communicate in a meaningful way, and that's what victims' services assists us in doing.

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The Chair: Michael Lomer—surprise, I'm picking on you guys because I know you're fast on your feet—is anything Nigel just said making you nervous or uncomfortable as a defence lawyer?

Mr. Michel Lomer: I don't think so. In fact, I suspect that Mr. Allan's concerns and mine are probably not dissimilar when dealing with a victim-witness, because that's what he's really talking about, not the victim per se but a victim who has to testify, because that's where he and I both have our roles.

His concern, as is mine, is that there be a fair trial. When I say a fair trial, it's a fair trial for both sides: a fair trial for the crown and a fair trial for the defence. That means, from the crown's point of view and from my point of view, that with a witness who is in fact also a victim, you have to be concerned to prevent what I would call “colourable evidence” getting in. That's evidence—whether there's undue influence, whether the person has been manipulated, that sort of thing—that would cause a court or the jury to be concerned about the reliability of that person's evidence, because that's the crucial part. We want to be as certain as we can about the reliability of that evidence.

We want to be that way for two reasons. We don't want to convict the innocent, nor do we want to acquit the guilty. If there is a colouration of the evidence inadvertently by a support group, then the risk that comes from that is that person who is on trial may be unjustly acquitted because it's perceived that the witness had been tampered with.

I'd like to give you an example, if I can. I participated before the Morin commission on behalf of an organization called the Association for the Defence of the Wrongly Convicted. The Morin commission came out with a number of recommendations. I won't get into the specific facts, but it's clear that in that case, because of the way the police dealt with the victim-witnesses, they had coloured the evidence that was there. As a result, they came out with a number of recommendations that I'd commend to this organization, relating to how it is that we're going to have to separate the legitimate concerns of the victim and the legitimate concerns of the trial process vis-à-vis that person as a witness.

One of the recommendations—if I could, just briefly, and I'm sure you'll bang the gavel if I'm off topic—was:

Police officers should be specifically instructed on the dangers of unnecessarily communicating information (known to [the police officer]) to a witness, where such information may colour that witness' account of events.

So it's one thing, I suppose, to say it's important that we give a victim as much information as we reasonably can, but the information has to be of a generic sort. It can't be information specific to the crime and who committed it, if I can put it that way, because when you get into that, the potential for influencing the witness is certainly a real one, and it's one of the recommendations.

Another recommendation was:

Police officers should be specifically instructed on the dangers of communicating their assessment of the strength of the case against a suspect or accused, their opinion of the accused's character, or analogous comments to a witness, which may colour that witness' account of events.

Once again, it's very easy...or perhaps that's the wrong word. It's a natural human reaction to want to get the person who committed that crime. That common desire of the police, the prosecution, and the witnesses can skew the actual real evidence and cause or lead to a miscarriage of justice. But please keep in mind that there are two sides to this coin. It can happen the other way too.

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There are other recommendations I won't go into, but they deal with the conduct of crown counsel in interviews. They're very detailed, they're very helpful, and they're not terribly surprising. But from an organization such as this, where we're talking about victims and the role of the victim, it's helpful to understand, more so than is maybe understood now, exactly the nature of the trial process so that they understand that they may cross that line and become a witness, and when they do, different rules have to apply to protect the integrity of the evidence they're giving.

The Chair: That's a difference that I've picked up on now and that I think others in the room have as well. There is a substantial difference between me as a victim who's sitting in Windsor having an event happen in Vancouver, not having any interaction with it and not being a witness; there's a difference between me as a victim then and a person who has been part of the interaction or part of the interplay, or may have to testify directly on facts leading up to the case. Is that it?

Mr. Michael Lomer: Absolutely. I think the police and the crown are still constrained with respect to how much information about the case they can give prior to trial, even if you are somewhat removed, but the risk of damaging the fair trial rights to the crown is significant if too much information is released prior to trial.

The Chair: Right. Now we have a few other people who were prompted during that exchange to put up their hand.

Michèle Roy.

[Translation]

Ms. Michèle Roy: I am not sure I understood fully because of the difference in language. If I understood correctly, someone said earlier that victims should be informed because they will be witnesses at the trial or of what will happen and it's a question of being polite. Something about that raises some questions in my mind.

If victims lose confidence in the justice system and do not believe that they will be treated fairly, there will be no more complaints. We regularly hear about women who, after trials that have made the news, after decisions, judges' comments and meetings with the police, say: "I won't lodge a complaint. I feel that I'm being accused and assaulted all over again, and I will not lodge a complaint." If there is no complaint, there won't be a trial and it won't be possible to see if there really was an assault, or who is guilty, etc. We need to restore victims' confidence in the justice system. We have to get them to understand that they can obtain justice through the system. It is more than being entitled to information and politeness.

[English]

The Chair: Professor Sheehy, you had your name in before.

Prof. Elizabeth Sheehy: Thank you. I want to make a couple of comments, just trying to reframe the issues a little bit, particularly since now we're at the point where we're talking about the criminal justice system specifically, as opposed to services in the broader sense.

I think it's helpful and important for a number of reasons, politically, morally, and legally, to frame it as equality rights as opposed to victims' rights, in the context of the criminal justice system specifically.

I say that politically because of the information we have about the relationship between inequality and disempowerment and victimization.

I say that morally because of our concern for dignity and respect for the people who we ask to put themselves forward in the criminal justice system.

I say it legally, that I think it's important to reframe it as equality rights, because we do need a hook if we're going to find a role for this group in the criminal justice paradigm, which is not about the witness; it's about the state versus the accused. The most important hook that gives us dignity but that also respects the political realities of victimization is to frame it in terms of section 15 of the charter, equality rights. I think that gives the federal government a clear role and responsibility. That gives us the possibility of asking for access to funds, like legal aid funds, to fight for equality rights for those who are trying to participate in the criminal justice system.

I'm sure that's an intervention that many disagree with strongly, but it's a suggestion that we try to think about the ways in which we can make this a federal issue and respect the political and moral dynamic of victimization in this context.

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The Chair: It may not be a popular view, but we're not here for popular views. We're here to hear what you have to say.

Randy Wickins.

Sgt Randy Wickins: Thank you.

Going back to what Mr. Lomer was saying and again following up on Michèle Roy, it's really difficult to get back to true victims' needs and issues when we're surrounding ourselves with the legal rules and laws that have to be followed—and I understand this—in a court of law.

Miscarriage of justice: Who's defining justice? What do the victims really want? Are they defining the harm that's been caused and do they have any input into deciding what's the most appropriate response? Not in court. You have victim impact statements, those that end up being read in court. What does that mean? What influence does that have on anybody?

I find it really difficult to think that any.... All the victims I've talked to are not too happy with having gone through that court process.

I hate to sound like such a negative person on that court process. I'm a part of it. I've been on the stand an awful lot of times, and I know it has to be there. But a lot of victims need some closure and don't want to be up there. They want to have their say and play a bigger role. How can we make that happen?

There needs to be greater support for allowing this type of thing to happen, where victims play a role, regardless of the rules and the legal technicalities that have to be followed in court. Yes, I know that has to be there, but it's a priority thing. Are we looking at what the victims want or are we looking at what the state wants?

The Chair: Karen O'Hara.

Ms. Karen O'Hara: I find in our work with women, they think the crown is their lawyer, rather than the crown actually representing the Queen or the state and not the victim.

It's imperative that the crown meet with the woman. We're very under-resourced in the crown prosecutor's office in Nova Scotia. The crowns are meeting with women maybe 10 minutes beforehand. That does not give the woman any confidence. If she is the main witness, it doesn't give her any confidence that she's being heard or any confidence in the system.

In one very rural county in our catchment area, they've had per diem crowns for over a year. So often we don't know until the morning the woman is going to court who the crown is going to be, and maybe the crown will have a minute or two to meet with her. We really need to look at that.

The Chair: Peter Quinn.

Mr. Peter Quinn: We're talking about a lot of general things this morning, and during the break I was thinking about some of the specifics. I was wondering if we were going to be talking about some of the specific changes.

I heard a couple of the speakers this morning saying there's not much you can do, because this is provincial jurisdiction and not federal jurisdiction. But I personally feel a lot can be done, even some really basic things. I see this on a daily basis, in simple things such as court scheduling. Victims often aren't considered in court scheduling. It's very offender-focused. They're just there to attend court.

Funding obviously is a provincial jurisdiction, but it's a problem. I think everybody here would agree that there need to be services for victims, but if you ask them who should fund those, that's where the disagreement comes.

The one thing the federal government could do is mandate the imposition of victim fine surcharges. That would certainly help provinces. That's something that could be done on the federal level.

Questions need to be asked. I might be quoting incorrect statistics, but if there were 1,000 sexual assault victims, why would 900 not come forward and only 100 come forward? And then why would only another 10% have charges laid? So out of 1,000 sexual assaults, 10 actually get into the courtroom. Why that problem occurs needs to be looked at at the federal level.

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There are problems with release of offenders. A lot of times I see victims aren't consulted. Especially in situations of domestic violence, people are petrified that this offender will be released. A lot of times the judge will release that offender. I'm not criticizing the judges; I'm simply saying they don't know the fear this person has when it comes to “show cause” hearings, because victim impact statements are there for sentencing, not at “show cause” time. So there's no way to communicate that problem to the judge.

It would be good to consider basic problems such as that and look at ways those situations can be changed. Because when people talk about secondary victimization, those are some of the things they're talking about. A woman's husband has threatened to kill her and she believes it's going to happen, and all of a sudden the courts release this person, she doesn't know why, and no one's asked her for any input. Those are some of the things the system could be more sensitive about.

The Chair: Thanks, Peter.

Marvin Bloos.

Mr. Marvin Bloos: It seems to me that two competing models are being discussed this morning, but it's not altogether clear which model is preferred.

The first one, which Mr. Wickins was talking about throughout the morning, is the restorative justice model. That doesn't fit easily in the traditional court system. Traditionally the court is concerned with the offender and whether he or she committed the crime. Restorative justice principles have different ends in view and could possibly start much earlier than a traditional model does.

When you look at what the victim is wanting out of the process—if they want to be heard, if they want to have justice on their terms, as Mr. Wickins has described—in that particular system, there might be different principles at play, and we might need legislation to allow for that, both diversion and perhaps post-conviction or guilty plea.

We might also want to look at different forms of sentencing. Conditional sentencing is being criticized a lot in different provinces, because it's seen as being too soft on crime. When people are required to serve their sentence in their homes, that's not seen as punishment enough. Yet, with some imagination and creativity, that could serve the ends of a restorative justice model.

On the other hand, if we're dealing with a traditional, punishment-oriented system—that is, an accused is charged and then the trial process is to determine whether he or she is guilty of the offence—that might well limit the role that victims' services can play.

There's been discussion already about the danger of tainting evidence, and I run into that a lot in my kind of work. You have what I call credibility contests. The person on one side says something did happen; the person on the other side denies it. The focus then throughout the trial is on who is telling the truth, or is all of the truth being told, or is there a mistake in the evidence of one side or the other? A great deal of focus is placed on what influences there were on the particular witness.

Many times that witness is the victim. It could be a child, it could be a woman, it could be a disabled person, or whatever. If we have a lot of involvement with organizations that assist that person, if there's been discussion of the evidence, critical to the defence is to try to get back to what was originally said. What were the original statements?

Thus we have this debate now in Canada and a number of concerns about privacy. But you can see from the defence perspective, when you have a client who tells you they did not do what was said, then you're obligated to pursue that.

If we have a number of organizations rightfully attempting to assist a particular victim and if they all become involved and muddy the waters, then you have a big job on your hands trying to discover what was the original knowledge of the particular complainant or what he or she originally said.

So in the traditional system there are some dangers, and perhaps what's required, Madam Chair, is something like a code of ethics, something like a set of guidelines.

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We've come a long way with interviews of young children. It's been well-recognized how easily their evidence can be tainted—how subtly a question can be put so that a young child will give the answer they expect to be given.

We need those kinds of social studies and scientific analyses so that we have proper guidelines in all these other cases. We should be able to identify easily which cases require that type of special care. You might not need that in a break-and-entry or in a bank robbery. You may very well need that in allegations of sexual assault or child abuse.

So we have to be sensitive, when we try to provide services to victims, that we don't defeat the other purpose that's also at play, and that's the criminal justice process. That is a contest between the state and the accused. It's no better a thing to perhaps provide support to a victim that might then result in an innocent person being convicted. I don't think any of us want that either.

The Chair: Or a guilty person being acquitted.

Mr. Marvin Bloos: Or a guilty person being acquitted.

The Chair: Okay.

Joanne Mariott-Thorne, and then we'll go to Nigel Allan.

Ms. Joanne Mariott-Thorne: I think what we've all learned from our experience and also what the literature has told us is that those victims of crime who are acknowledged by the system and who have the opportunity to participate in the system and feel that all their information needs are met—not just facts and figures needs in terms of when the hearing is and whether or not there is an adjournment, but an explanation of what's behind that, why the system operates the way it does, what are the principles upon which it operates, and what this means in terms of actuality for them; the fact that the courtroom will be open is one example—the more they are involved with the system, but not necessarily with the crown attorney, the more they are satisfied with the system and the more they can accept whatever the resolution is, if they fully understand.

But I think that's the case both with restorative justice and with the traditional system. I don't think we have gone far enough with the traditional system. We shouldn't be throwing out the baby with the bathwater. We certainly haven't gone as far as we can go. We're just scratching the surface in terms of having victims participate and be acknowledged by the traditional system. We should continue along that route.

On the other side of the coin, in terms of restorative justice, certainly the studies I've seen have all said that the highest victim satisfaction occurs where there has been the highest victim involvement. Although those programs are presented usually as being very victim-oriented, if you really look at the percentage of victim involvement, it isn't very high in a lot of the restorative justice forums.

I guess that goes back to what I was saying before the break—that we have to ensure that perspective is there in setting up the programs. We all come at setting up those programs from the same interest in serving the community, in serving the victim, and in ensuring that the offender becomes rehabilitated and doesn't revictimize somebody else. But there is a different lens that's brought to it if you're working with victims versus working with offenders. I think we should keep that in mind.

Restorative justice on its own, if it's not set up with a victim's lens, is going to limit the degree of participation, the same as victims are now limited in their degree of participation in the traditional system.

The Chair: Before I go to Nigel Allan—

[Translation]

Ms. Michèle Roy: When people talk too fast, I miss a lot of what they are saying. I would perhaps like to ask a...

[English]

The Chair: Okay. We should keep in mind that what we're saying is being interpreted into either official language, and that it helps to speak slowly.

Before I go to Nigel, I'm afraid that as we approach the lunch hour, I'm going to lose track of a couple of issues that we've had thrown out there and that we haven't pulled back towards any sort of resolution.

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One is the problem that Brenda and someone else raised: cross-jurisdictional problems. In Brenda's case, she was alone in Edmonton and her sister was murdered in Whitehorse. I'm going to trigger for you something that the Minister of Justice has asked us to take a look at, and that is the issue of whether we would develop or propose or agree that there should be a national office that would deal with a variety of issues for victims of crime.

Can you just sort of keep that concept of a national office at the back of your mind? It looks to us like the government might be wanting to move towards that, and maybe we can give them a shove in that direction if we think it's a good idea.

These problems of cross-jurisdictional difficulties is an area where the federal government probably does have some relevance, even in the early stages.And it's not just between provinces. It could be county to county or city to county. In Ontario, if you live where I do and something happens in Kenora, you might as well be going halfway across the country.

Those are a couple of things that we should focus on or try to resolve at some point.

The other thing is something that you raised, Marvin, that I had hoped we would explore a little bit, and that is some kind of, for want of a better term, code of conduct or set of standards that could be applied in dealing with victims, depending on whether they're actual witnesses or not.

The third thing that comes to my mind when we're looking for a role for the federal government at the stage that we're now talking about is whether we couldn't urge the government—I always love to urge the government to spend money—to perhaps take a look at some pilot projects. These are not suggestions that are being dictated by the chair. They're just things that are.... Well, that's not true. I am pushy, but....

Voices: Oh, oh!

The Chair: They're just things that are coming to mind that maybe we might want to talk about—not to take anybody else off topic.

Nigel.

Mr. Nigel Allan: I just wanted to show that there is sometimes considerable conflict between victims and what the crown has to do. I don't think a week goes by where a crown is not faced with a victim who doesn't want to proceed. It is then that the crown has to illustrate that it is a crime against the state, that he or she is the victim in a specific sense. As crown attorney, it is my job to present this case and this issue before the court, regardless of the wishes of the victim. And there, of course, is an immediate and very real conflict that doesn't go away.

The Chair: And one that anybody who's worked in the court system has faced, in domestic violence or in sexual assault or in a variety of other areas, even in terms of witnesses who don't want to take the time because they've gone beyond a property offence or something like that. These are serious difficulties. I'm glad you raised that.

Ms. Derksen.

Ms. Wilma Derksen: I guess I've come to the conclusion that we might be using the wrong words and the wrong models. My own model is that we need to heal. In my crossing over from the victims' to the offenders' fields, I've been hearing from the victims over and over that there is no healing in the court system. There is no way that they can feel satisfaction that they've been heard—nor do I hear it among the offenders.

I do think we need to start processing different models. To some degree, I think, the victim is the canary in the mine system: they are very small and they're at the bottom, but if they die, if they're screaming and squawking in death throes, there is something wrong with the whole system. I think this is what we're hearing. So how do we make the canary healthy again? We need to clear the air of the poisonous gases.

I hear about the different models, and I'm familiar with the restorative justice and the other, the traditional. What alarms me is that we're experimenting with both of these models. I was at a dinner with judges and they were talking about how they made decisions and how they would try this to see what the public reaction was. If we were in a medical discipline or in science we would never think of experimenting on live human beings, especially in public the way we're doing. I think we're tinkering, and I'm really concerned about what this is doing to the victims and to the members of the public, who listen to the media and are always on the verge of comparison and really reacting in trauma when they hear about other cases and about injustices being done.

• 1155

A few weeks ago I was at Queen's University, where we spent a whole week with different models. Now in some ways, if you ever hear about this week, you'll hear about all the disasters that happened, but what came through very clearly is that in our experimentation with different models, when we threw students together and asked them to role-play, it was amazing how invested we were in our roles and how much we learned in the space of one week when we experimented with different models, from the traditional to the restorative justice. None were completely successful, but this was a place where we could learn.

It was only at the end of the week, when we finally, in exasperation, talked to the victim and everybody was saying, “Why aren't you listening?”, that we then said, “Okay, now you dictate the process”. It was very simple when we went through the process with the victim. At the end, she said she was healed in her role-playing. But she hadn't told us that she was a true victim, and she said she was healed from what had happened to her in the past simply because we were able to cross those lines.

So I really encourage us to look at safe places to do these kinds of experimentations and have these kinds of discussions. This might be an agenda for the national office.

The Chair: Thank you. Steve Sullivan.

Mr. Steve Sullivan: Thank you, Madam Chair.

I think one of the most frustrating things I hear from victims within the system is that they hear too much about the accused's rights, and I can see the same frustration on some of the faces of the people here today.

I think it's important that we talk about information for victims and that we understand exactly what it is victims are asking for. They're not asking to sit down with the crown and plan the strategy for the trial. They want to know when the trial's going to take place. They want to know the dates. They want to know what the services are. Look at Ontario's Victims' Bill of Rights and at every other similar piece of legislation across the provinces. They want to know what the charges are, and if charges weren't laid they want to know why. If there are things that a crown can't explain to them, it's a simple matter of explaining why something can't be done or why they can't have that information.

Mr. Allan talked about victims being only one proponent. That's what victims want. They want to be one of the proponents of the system. Many of them don't feel they are. If you can make them feel like they are one proponent of the system, you've succeeded. It's not your job as a crown or a defence attorney or a judge to make sure that when the victim walks away from the system he or she is completely satisfied with what happened. That's probably going to be very rare. But if you can make them feel like they had a voice and had some input, you've succeeded.

We heard a couple of weeks ago at the justice committee from Theresa McCuaig that one of the things she wanted to know most of all about the murder of her grandson was how long he suffered. She had to wait over a year to know that he was only in that apartment for twenty minutes. She had heard on the radio and in the media that it was over two hours. One of the things that meant the most to her through the process was a chance to sit down with the crown and talk about a plea bargain. She didn't like the plea bargain, but the crown sat down with her and explained why it was, explained the evidence thing and those things, and she walked away satisfied, at least knowing that she had had a chance to voice her opinion.

Obviously you have to treat victims who are witnesses differently, but the concern that because you give victims basic information you're somehow going to threaten the trial, the legalities, is hogwash.

Take a look at what victims are asking for and base your decisions on that.

The Chair: Thanks, Steve. Gary Rosenfeldt.

Mr. Gary Rosenfeldt: Thank you very much, Madam Chairman. I would just like to add a bit to what Steve said in response to Mr. Allan and Mr. Bloos.

Back in 1984 in Edmonton, a group of families of murder victims got together and opened a victim-witness program in the courthouse in Edmonton. Brian Beresh, the head of the Criminal Trial Lawyers Association—I'm sure Mr. Bloos is aware of him—called a national news conference at the time. It was on the national news all across Canada that these victims were going into a courthouse and they were going to tell other victims what to say.

There was such great concern, and I still see that concern being expressed by Mr. Bloos today and by Mr. Allan with regard to victims helping victims in a courthouse or even a victims' services program providing some services for crime victims in a courthouse. And I agree fully with what Steve said. It's really hogwash.

• 1200

There seems to be an attitude that all crime victims are vengeful, hateful people who will do anything to get the offender. That attitude persists today—it existed 14 years ago—and it's simply not true.

Victims are not after vengeance, they're after justice. They expect to be kept informed throughout the process in the courts. As Steve mentioned, they go into the courtroom, and in most cases they don't have services or separate waiting rooms. Some of the things that should be provided aren't being provided in that courthouse.

Actually, for six and a half years, we did operate the victims' service program in the Edmonton courts without any government funding. It was all victims helping victims in the courthouse. We never had one case ever come to the courts where there was a complaint that we had prompted a person on what to say in the courtroom. It just didn't happen. The reality was that the victims we had working in that courthouse were themselves victims of crime. They simply wanted to help other victims as they went through the process.

But what victims are really looking for in the courts is something that we don't really get here in the province of Ontario. We have a witness service here in the province called a victim-witness service, and most provinces are really the same. What they're really looking for, as Steve mentioned, first of all, is be informed of the process and exactly what's going to take place in the courts.

I have sat in many, many courts across this country with families of homicide victims. I remember one case in Vancouver, as an example, where we went into the courtroom and the crown prosecutor refused to meet with the victim prior to going into the courtroom. After we went into the courtroom, I was sitting next to the mother of the victim, and the crown prosecutor brought up the fact that her son's hand was cut off when he tried to fight back. He was fighting the offender, and this sort of thing. Basically, I don't think any victim really wants to know all of the prosecutor's plans for prosecuting the case or anything else.

I think one of the best examples of how victims were kept informed and handled properly throughout the process was the Mahaffy-French case right here in the province of Ontario.

Compare that, for instance, with back when our son was murdered out in Vancouver by Clifford Olson. At that time, we got zero services from the crown prosecutor in the province of British Columbia. We were never kept informed. They never returned our calls. Nobody would ever phone us back among the police or prosecutors. Nobody in the system did this. We went to the premier of the province, but nobody would call us back.

In contrast, look at today. A few years ago in Ontario, in the French-Mahaffy case, the prosecutors, police, and everybody in the system worked with the family. They discussed a possible plea bargain. That's the one we're all familiar with.

The interesting part about this is that when it's all said and done, even though there was a problem with regard to the plea bargain, we never heard a complaint from the victims, did we? The point was that they may not have been totally satisfied with the results of the one conviction, but the reality is that they're not going to complain about it because they were part of the process.

I think that's the whole point we're trying to make here today. Victims need to be kept informed only to be part of the process and not to be left out. They don't need all the information that's going to mess up a case for the prosecution.

The reality is that what you'll get is a willing, cooperative victim. The end result is that when the trial is over, there's a possibility that the victim then will feel that they were part of the process and that there may have been some justice done. This is no matter whether it's a sentence that they expected or wanted. That is, even in many cases, irrelevant.

I'm looking at the father of a murdered child over there on that side of the table who I'm sure did not get the justice he expected to see in the courtroom, but the point is that he and his family were able to carry on with their lives. They'll never be the same, and Jesse is always going to be a part of his family, but the point is that he was able to carry on. He has become a member of Parliament today.

The reality is that people can overcome victimization to a certain degree, but they never totally overcome it.

• 1205

I have walked out to the graveyard with Chuck, visiting his son. I look at him today and I think it's marvellous. He's a member of Parliament today, yet a number of years ago he was a distraught parent, the father of a murdered child. He is still that distraught parent today, the father of a murdered child, and Jesse is still very much part of his life, but the reality is that he is also a member of Parliament today.

He's like me; I'm the head of a large victim's organization in Canada today. We're not out there promoting hatred and vengeance and these sorts of things.

I will be quiet with that, Shaughnessy.

The Chair: I have nine people on the list, lunch is looming, and we're late. I will close the list off now. That's not to say that we won't continue with some of these topics after the break. I won't forget who you all are.

Susanne Dahlin.

Ms. Susanne Dahlin: I'll be quick. I think most of the people have said what I want to say. Just to echo what Steve and Garry have said, what victims want is information, support, and to be part of the process.

I think the basic tenet of any victims' service organization is that they don't discuss evidence with the victims. I think that's just a red herring. That's not anything that anybody does at this point.

The Chair: Thank you, Susanne.

Irvin Waller.

Mr. Irvin Waller: I'm made very nervous by the discussion. When I hear the words “crown prosecutor”, that already gives away to me most of what the problems are. This is a system that was set up between the state and the offender without really thinking about what it is the public wants or what victims want.

It seems to me that when we are talking about the victim in the criminal justice process, we need to go back to two or three very important basic principles.

One, most people expect some respect for the right to life, liberty, and security of the person. They basically think that governments are going to do things to protect them. That has to be given a lot more importance in what we are doing here today.

I'm surprised that nobody has mentioned up to now the Ontario Police Services Act. While it may not be that effectively implemented, it has four or five principles at the beginning that say that the main aim of enforcement is to safeguard the life and property of persons in Ontario.

It talks about protecting human rights, respecting the victim, gender issues, and a number of issues. It sets out very clearly a vision for policing that is a 1990s vision and not, in my view, the 17th- or 18th-century vision that I think underlies much of the system.

Two, when you get a break in the state protecting you, victims are looking for not just justice, which is a very important thing they're looking for, or respect, which is also a very important thing they're looking for, but they're looking to be empowered in some way in that process. They're also looking for some safety, which I think is totally overlooked in what we do when we are talking about victims. They're also sometimes looking for reparation.

We have to think a bit more about those elements that are indeed respected in various ways in restorative justice. That's on the margins, so we have to be going right back to where it is important.

Three, what goes on in the courts is visible and important. Particularly in the more serious cases, like murder, many of the cases actually get to a court.

I think people in this country are showing with their feet that they are not very happy with the police and court systems. Fewer than 50% of them report most crimes to the police. That's a very clear indictment.

We have already had the statistics on rape. About 90% don't report. Even when they do report, the majority of cases don't get to the courts. We have to talk a lot more about policing.

You threw out a series of things that the government might be interested in doing. I would like to just put two or three things that would be at the top of my wish list.

Things like the principles in the Ontario Police Services Act should be in, for instance, the RCMP Act, and these should be given a lot more of a profile through the Criminal Code and the Young Offenders Act. There should be some clearer statement in all federal legislation that has anything to do with crime about what the overall objectives are and about the importance of the victim.

• 1210

The idea of having a national office for victims is basic. Victims have been excluded for several centuries from this system, and we heard it today. It's just one component of what a crown does. We haven't had much discussion of the policing issue, but if victims are going to get basic respect for their life and security, if we're going to see some change in the system, then there has to be a strong force nationally, as well as provincially, that's going to try to overcome the bureaucratic system, which was set up with different objectives.

I'm interested that this committee is called justice and human rights. Those are certainly considerations in victims' concerns, but we have to get this broader notion that safety is a very important issue as well as justice. We have to try to help police agencies realize that they're the first to aid in helping a client who's the first among equals.

We have to get rid of “crown” in the prosecuting phrase. I'm not quite sure what I would substitute for it. We certainly should be talking about having a possible representation in the court process and a right to protect their personal interests. Victims do have personal interests in that process in relation to safety, reparation, and whether their views are taken into account.

These aren't revolutionary ideas; they exist in other countries. We've already seen in this country how the federal and provincial governments can get together on the divorce area so that you have family court and crime issues. Why can't we have systems where the criminal and the reparation issues are brought together more? That was my second wish list.

This is my third wish list. I think the issue of how some of this stuff can be financed is partly a question of us doing a lot better work at looking how we presently spend our $10 billion in Canada in responding to crime. We should put it where safety and security are priorities. Make sure policing is focused on safety and security in its role—it has only a limited role in safety and security—and that it treats victims as clients. The prosecution and courts, etc., should also treat victims as clients.

But we've also got to look at more innovative ways of raising funding. The reason why the States has been able to do so much for victims is because of their system of fining corporate offenders. The Office for Victims of Crime in the U.S. doesn't use any money from taxpayers. It spends—I'm not sure—$100 million U.S. or $200 million U.S. It actually has $500 million U.S. in its bank at the moment.

I think we've got to look at the use of fines and funding as one way of turning the system around so that victims are no longer lost and forgotten in the shadows and are an essential part of every part of our debate in terms of safety, security, and justice in this country.

The Chair: Thank you, Irvin.

Rick Prashaw.

Mr. Rick Prashaw: I thought Steve Sullivan's point that was illustrated through the story of the woman who wanted to know the suffering on the last day of her loved one's life was so powerful. We must remember that we don't want a justice system that's dictated or driven exclusively by victims, but we want them on the bus. We want them to name the questions. I think one of the things we're learning is to be surprised by what their questions are and the various faces and stories out there among victims. We have to find processes to allow them to identify what their questions are. We need both the system and communities to be able to get resources to those folks.

I tried to get Susan Savereux here. She told a powerful story of being a victim out in Vancouver. The victimizing did not take place in Vancouver, but her brother was killed by an impaired driver. It was only through post-sentence mediation where she went down and got all the questions that helped her bring some closure to move on in her life. She found out what his last day was like. She had some unfinished business with her brother. And the mediation managed to get out of the adversarial and punitive; it's a mixture of the two.

• 1215

We're hearing in communities that there's something good about the adversarial system: “If my son gets charged, I'm going to look for a good defence lawyer under the existing system.” I know the horrors of that system, but the fact is that for someone I care for, I want a good defence lawyer. Right away I know that I'm also going down a path that presents a lot of problems, because then I don't get to ask questions. I don't often get the chance to have an active role.

So if we could figure out what's good about the adversarial system in terms of confidentiality and due process and defence, and look at these new approaches and what's good about them, the way we can promote real dialogue and an encounter if it's monitored, if it's prepared for, if it's agreed to, and if we can see what's best in what seem to be two worlds, two planets, two approaches of justice in terms of restorative and traditional ways....

We go into church basements and we talk about punishment, and some of the most punitive folk happen to be sitting in church pews. That comes out of a history and a theology of teaching punishment. To remember some of the good in that and how to separate it from the bad.... We want lessons taught, we want denunciation, we want deterrence, we want safety, we want people to get strong messages, but we seem so hooked on this one tool of punishment, this one way of doing justice, that regrettably we lose track of the messages. Because we have so few tools out there in the community, we think we....

Again, Ross Hastings last week talked about one-dimensional deterrence, one-dimensional fear, so we're going to scare a youth with a sentence, but he's more scared about not being a part of his gang, or we're going to deter somebody with a strong message that this is wrong and it violates the values, but their real issue is that they don't have any work, they don't have any future, they don't have any hope, so they're not really prepared to hear this other message that they violated your group of values, because they don't sense that they belong to this community.

I think there's something very good about the existing justice system, not only the people who are in it but what underlies it. If we can discover what that is in terms of what we're trying to defend and protect, we can also then look at these new approaches, which are actually new ancient approaches that go back to some real ways of involving community, so that we can take the best of both and pay attention to the existing system. Right now I'm caught in between.

Again, with a charge to someone I love, I'm going to go over here and knock on your door, and I want a good defence because I know what could happen to someone I care about. But I don't think we get at the truth in some of those systems. We get at plea bargaining and backroom deals and we get at cutting things and excluding victims.

We're at such an important point in the dialogue today because we're at the point of entry into the system, and some folks I hear, like Randy, Rick, and others, say don't go through those doors. If you go through those doors we can sometimes forget about truth and forget about real healing taking place. But other good folks are saying they don't want just a restorative approach because they also have some horror stories about turning things over to community, turning things over without sensitivity to issues around gender and class, and power imbalances and people being revictimized. It's being framed in an either/or way, and I often think it's a both/and, that there's some good strength in the existing system and also in the alternative approaches, and we need to figure out the cobbling of the both.

The Chair: Thanks, Rick.

Kathy Louis, I know you wanted to talk a little bit about restorative justice.

Ms Kathy Louis: Thank you, Madam Chair. In fact, I wanted to share with you how there have to be more efforts made at education and training of all the various different components of the criminal justice system, of the current traditional system, before you begin to look at the restorative processes.

I was encouraged to hear what Joanne Marriott-Thorne is doing in their area about the inclusion of victims, because from my point of view as an aboriginal person and in our world view.... I want to talk about that later on in the next day or so, because that is so basic to understanding the world view of aboriginal people, which is very different from mainstream thinking, and I think it's important that people who work in the system become aware of the differences and why there are the differences of seeing the world and the criminal justice system through the lenses of aboriginal people.

• 1220

I guess I would like to also mention that there has to be a big attitudinal change among those who work in the system. I think we lose sight of so much when we are not sensitive to the issue of victims in the police's role, the defence's role, the crown's role, the judges', the corrections' and parole components, because it is almost a win-lose situation. From where I come from in the restorative process and in the traditional healing process and concepts, it is a win-win situation. It is a healing type of situation, not an entirely punishing kind of process.

I think we need to examine those and understand them better.

The Chair: Bob Whitman.

Mr. Bob Whitman: One of the things I get to do is work with offenders. I get to hear from them how they set themselves up in the system to abuse it. I think one of the things we need to look at when we extend rights to somebody is how they abuse those rights.

We give them the right to a speedy trial. I don't know why it is that we are hesitant to say we should give the same right to victims. If you do have a process where two years later you are still involved in the trial, what is that doing to the victim and what is that doing to the process?

It's the same way with how we give them the right to legal counsel. I don't know why we don't extend the same right to victims in terms of dealing with issues if their rights are violated.

I bring up the question about good defence. I have problems sometimes with what defence lawyers call good defence. Is a good defence when you institute a process of delay where the only benefit of that is to confuse people in terms of what they might present as evidence or whatever? I don't consider that to be good defence.

We were talking earlier about having a code of conduct. I wonder if defence counsels would be willing to look at their own code of conduct within that system as well, because I think in terms of revictimization of victims, defence lawyers often do that.

The Chair: Andrew Telegdi.

Mr. Andrew Telegdi: Thank you, Madam Chair. Prior to coming to Parliament, I used to work in a community justice agency, Youth in Conflict with the Law. We took a broader approach, trying to look at how you can institute more of a restorative kind of model. That goes back about 20 years. Having worked with the courts fairly closely, having been an observer in the courts, one thing that comes through very loud and clear is that the way we have the system set up, the crowns are overworked, the police forces are overworked, and everybody in the court is overworked. We are processing a lot of cases that don't need to be there but could very much more easily be done with alternatives.

This would have a couple of impacts. First, it would reduce the workload of the courts, which I believe is important. Two, it would probably bring much more meaningful resolution to cases, which you can get through the alternative justice model, which is also very important. The people who are in the courts in the adversarial system would have more time to be sensitive and to be sensitized to what it means to be a victim and what role they can play. We would probably have more resources to provide crisis intervention for somebody who is going through a case like Priscilla de Villiers did, or any other person affected by that kind of crime.

That should be an automatic response. When a police officer goes out and they know they are going to be reporting to somebody that there is a homicide...you have to recognize that you are going to need crisis intervention, because very few people have ever gone through it, and gone through it successfully.

• 1225

When you're looking at the court process, obviously you have a different situation when you're involved in the finding of guilt. Once guilt is found, though, it seems to me that victims should have the right to give a victim impact statement, whether in writing or orally.

If the courts get a little emotional at sentencing time, so be it. It wasn't meant to be clinical or sanitized or what have you. It's meant to bring some kind of closure to that particular case, knowing there will never really be closure for the victim, but they can certainly receive some help. The more dramatic and painful the crime is, the longer it's going to take to be able to deal with that.

One of the things we really have to seriously look at is how we allocate resources. Irvin mentioned that we're spending $9.6 billion on the present system, if you include the federal, provincial, and municipal spending. If you go beyond that, you're spending $46 billion.

In the last few weeks we allocated $32 million to crime prevention and community safety programs across Canada, and now we're looking for submissions for that. That $32 million represents 1% of the federal budget that we spend right now in the departments of justice and the solicitor general—1%—and it has received a great deal of news coverage. We spent $40 million on hiring 1,000 more people to work in the penitentiaries, which received very little coverage.

What I'm trying to say is we're going to have to take a look at how we're spending the resources we're spending now. Can we spend them more effectively? And how can we mix the traditional justice system, with its adversarial approach, with restorative justice models or community sentencing models? How do we get the public involved in that so that they see justice is done?

In the province of Ontario, I can tell you the perception of the public is that we have young offenders legislation that is very lenient. The reality is, when you look at the young offenders legislation in Canada, we're probably the most punitive and have the toughest young offenders legislation in the western world. That's the reality, but the perception amongst many is that we have young offenders legislation that doesn't work.

I often refer to Quebec as a very good model because I think the perception and the reality there are a lot closer, given the fact that they don't have the influences we have in English Canada from south of the border.

The Chair: Thanks, Andrew.

Brenda McDonald.

Ms. Brenda McDonald: I just want to mention a few more things I noticed in our case, which we felt were very degrading to Susan—very disrespectful to her as a victim. She wasn't there to speak for herself. We weren't given the opportunity, so we only really had the crown, and I understand it was not her lawyer representing her. However, a simple thing would have been to use her name occasionally, maybe even once, instead of referring to her as “the body”, or as “his wife”. Even using the word “victim” might help. During the appeal, her name was not used once. It was as though she was non-existent.

Second, if a second criminal act happens by the offender and no charges are laid.... This act on its own was certainly serious enough to have charges pressed against Ralph Klassen. This young man, Ralph Klassen, after murdering my sister, got in his truck and attempted suicide by going down the Yukon highway and pulling in front of a propane truck. He did not die. He sustained very minimal injuries. The truck driver, however, received neck and back injuries that he'll have for the rest of his life. He has never been formally recognized as a victim because no charges were laid. He had been kind of dragged along through the system. They said that once the court proceedings on second degree murder were complete—they didn't want to muddy the waters of that trial—they would then press charges.

When the second degree murder conviction came back only as manslaughter, their response to this young man was “It will be seen as sour grapes now. Should we proceed?” To this day he's never been recognized as a victim, and he feels completely let down by our justice system.

• 1230

The community of Whitehorse does not feel it was in their best interests for the crown prosecutor's office not to press charges, although that was the reasoning they gave the community of Whitehorse: that it was not in their best interests to seek charges against Ralph for this offence.

Another revictimization that happened in our case was a law we actually have that blames the victim, and this is the defence of provocation. We suspected my ex-brother-in-law would badmouth Susan. What else could he do? He had killed her. We didn't know we had a law that actually backed that up for him.

I believe it infringed on her human rights, her freedom of speech. She was not there to take the stand to say whether or not she did in fact verbally insult his manhood, so there wasn't a judge or a jury to decide, is he credible or is she credible? The only person testifying was him, and he was obviously seen as telling the gospel truth. There were two people present there, and one is dead.

One huge issue I have that I know the federal government can do something about is changing the legislation and removing the defence of provocation from our Criminal Code, which takes away the blame from the victim and puts the onus back where it should be: on the offender to take full responsibility for their violent actions.

The Chair: Thanks, Brenda. I think you may be aware that in fact a review is going on in the department now of provocation and self-defence sections of the Criminal Code.

The last word this morning goes to Priscilla de Villiers.

Ms. Priscilla de Villiers: We need to go back to the basics of what it is to be a victim.

Healing can never take place in the courtroom. That is not what the courtroom is about. As a victim of crime, you find yourself completely helpless, completely in the power of a system that is foreign to you and a system you have no access to and no advocate in. I've ended on a preposition; sorry about that.

All one can do is get through it, because not only are you suffering very often physical pain, physical illness, enormous emotional and mental and post-traumatic stress, each one of which is bad enough in itself, but your family is disintegrating and you have to wait sometimes years—for Rosalee Turcotte it's seven years now that she's been going through this—until this process known as the court process is over.

From a victim's point of view—and I think I speak for all of us—we need to see a clear, open, and fair resolution. We need to be treated like human beings. That's all. Forget big words such as respect; just a basic human courtesy and dignity. There has to be some sense that you have some role to play in this system, or that if you are there because somebody you love is dead, that person's life at least had some meaning.

Research that we will be releasing very soon shows very clearly the correlation between the successful rehabilitation of a victim—the successful reintegration back into some sort of meaningful life—and the way the system has dealt with them.

Why the well-being of a victim is not sufficient reason for inclusion in the criminal justice system is quite beyond me, from a point of human dignity and care and compassion, in a country that is renowned for its compassion. And yet we treat some unwitting victim of crime like a pariah.

It's not clear to me why the civil rights of a victim should not provide necessary and sufficient reason for the improvement of the position of the victim in the criminal justice system. That alone should speak for itself. Let's not debate it.

• 1235

Trust me, when you've been victimized by a crime, your safety, the safety of your family, and the safety of your community are paramount. And you will hear from any victim you ever speak to that it must never happen again. Those are the two things that drive you as a victim, and I might tell you, they drive your community, because the victim represents the community.

The arguments for including the victim, if we leave just basic human dignity and compassion out of this, are that we need to really reinforce victim cooperation if we're going to deal with terrible acts. We have the statistics and we know what low reporting there is, and that speaks to it. If you do not support victims, if you do not treat them and their families properly, we will not report crime, end of story, and we certainly will not go through the courts.

I have to tell you, as I sit here now, if my daughter had survived, I would advise her right now to deal with her problems in private. I would never, ever recommend that somebody go through the courts right today, in 1998. And I'm one who believes devoutly in law and order.

The second argument is we have to treat victims with respect, because in fact it reinforces socially desirable behaviour. If you do not give victims their rightful position, if you diminish them, you're demeaning socially acceptable behaviour. And that is a message in itself.

The third argument is that the interest in the victim will enhance public support for the criminal justice system, because the public, believe me, identifies with you, a member of their community, and they say, “That's how I would be treated.” The support we have received from the public over six and a half years now speaks to that.

We also need to look at reparation, absolutely—the payment of restitution. Not only should it be some sort of deterrent, but also it must have some sort of healing effect on the victim, because most victims end up economically extremely poorly once they've been through this system. Not only are you facing loss, devastation, illness, and pain, but you also end up very often on welfare or close to it.

The final argument is that we need to deal with secondary victimization, or the victimization of the co-victims. Once again, we will not have healed people; instead we will have people who become a burden on society, because they never recover. The mental health and physical health costs in this country—I've just done a paper for the American Psychiatric Association on this—are astronomical. If you don't want to spend a couple of million dollars on victims.... Trust me, we're spending it already in our health care costs, and we will be pursuing that.

On the topic of an office of victims of crime, I've been very vocal on this. It's imperative that we create an office. We have no central access point. We have no point from which we can all find information. There's no centralized advocacy office or research centre. We have virtually no crime victim surveys worth the paper they're written on.

We do not know the cost of victimization in this country so we can balance it with spending on assisting victims and on preventing crime. I would suggest $32 million is probably a drop in the ocean if you look at the actual costs of crime.

We have to have some education. We have to start teaching people about the current system. The media exacerbate the system unbelievably, and it's time we started dealing with that, the way crimes are reported. There's just been a recent crime in Ontario where the bodies were left for nearly five months in a truck in the heat, and every single article in the newspapers of this country continually referred to the decomposition in the most foul terms.

Victims, family, and community do not need to read about people they love being murdered, and continually in terms of what it smelled like, what they looked like, and how decomposed the bodies were. It's not necessary. It's offensive. We do not do it with any other form of accident or illness or in fact suicide. This is most offensive, and it's time we started dealing with this.

• 1240

We need a resource centre for provincial-territorial-federal governments, we need a multifaceted one-stop shopping centre for victims' issues, and we need to be able to achieve some sort of legitimacy for the fact that there is such a creature as a victim of crime, that they have a legitimate voice in the dealings of this government, and that in fact we take some sort of role in the criminal justice system.

The Chair: Thanks, Priscilla.

Now we're going to take a break. I encourage you to be back here by about 1.50 p.m. That will get us sort of back on schedule for this afternoon.

We have a lot of loose ends, but we're just getting started and there is still lots more time to keep talking.

I'm not guaranteeing you a great lunch. This is, after all, the House of Commons. Have a good break, and I hope you get a chance to all talk to each other. Again, if there are problems with process, please talk to me directly.

• 1242

• 1401

The Chair: Before we begin, two of our participants have announcements they would like to make of upcoming events, well in the future, but anyway....

Arlène Gaudreault is first.

[Translation]

Ms. Arlène Gaudreault: Thank you, Madam Chair, for giving me the opportunity to invite all participants at this round table to an international symposium that will take place in Montreal in the year 2000. It is the first time that this international symposium on victimology will be held in North America, and we are very proud of that. The Association québécoise Plaidoyer-Victimes will host the event.

We want this symposium to focus to a large extent on all of the assistance available to victims and more specifically to practitioners, those who work with victims of crime on a daily basis. We will address the themes that are of concern to the people who are here today, questions of ethics, preventing victimization, and victims' rights, which are indisputable. We want to make it a very dynamic forum, a forum for dialogue with all countries, because it is an international forum.

So, put the event in your agenda. I hope that you will send us the little coupon that is in the brochure I handed out so that we can communicate with you regularly at all stages of the convention. So the meeting place is Montreal, in the year 2000, to resume the discussions of some of the issues we have addressed here and to share our views with people from the entire world.

Thank you for the time to make this announcement.

[English]

The Chair: Thank you, and I see Irvin Waller is co-chair of that conference.

Irvin, go ahead.

Mr. Irvin Waller: We obviously planned this symposium so that your committee's report would be implemented by then and could be shared with all these other countries across the world.

The Chair: Only if you like the report. Is that how it goes?

Mr. Irvin Waller: It's the implementation we're worried about.

The Chair: Okay.

Mr. Irvin Waller: We're sure your report is going to be great; we just hope the government will follow through.

The Chair: Thank you.

Mr. Irvin Waller: I think it's important to notice that policing is quite a high priority amongst the themes we're looking at. Prevention is also one of the themes.

But as somebody who doesn't live in Montreal, I think that is a fantastic place to come and share with people who are doing many of the things we've been talking about this morning, who in some cases have found good solutions but in other cases will be interested in learning from our solutions here.

The Chair: Thanks, Irvin.

Randy, you want to make an announcement, as well, about a conference.

Sgt Randy Wickins: Yes, thank you.

Something very similar the following year, in the year 2001, is the conference of the National Organisation of Victim Assistance, which will be held in Edmonton.

• 1405

I'm looking at Arlène's brochure. Arlène, would you do one for us too? It looks really similar.

For the second time in its history it will be held in Canada. It's primarily an American conference, but it really has an international flavour. We found out about a month ago that Edmonton had been awarded this conference. We're just beginning the planning stages and the sky is the limit. We look forward to everyone being in Edmonton in 2001.

Thank you.

The Chair: Thanks.

Now I see that three more of our colleagues from the House of Commons have joined us.

I'll start with John. John, maybe you could just introduce yourself and tell us what your riding is.

Mr. John McKay (Scarborough East, Lib.): My name is John McKay and I'm the member for Scarborough East.

The Chair: Eleni, did you want to introduce yourself?

Ms. Eleni Bakopanos (Ahuntsic, Lib.): Sure. I was here earlier. I'm Eleni Bakopanos. I'm the member of Parliament for Ahuntsic in Montreal and the parliamentary secretary to the Minister of Justice.

Hello, everyone.

The Chair: Peter.

Mr. Peter Mancini (Sydney—Victoria, NDP): I'm Peter Mancini, the member of Parliament for Sydney—Victoria. I'm the NDP justice critic. I'm also on the special committee on custody and access, which is where I was this morning. My apologies to people for not being here for the morning session, but I'm doing double duty today.

The Chair: Thank you. It's an easy life we lead, being in two places at once.

I'm going to ask Peter MacKay to introduce the second theme of our day and a half.

Mr. Peter MacKay: Thank you, Madam Chair. The second theme is the role and rights of victims in the pre-trial, fitness determination, trial, sentencing, and appellate stages of the criminal justice system.

This ties in very much, I think, with the topic we discussed this morning. I guess what we're talking about here are concrete examples that we can use as points of reference and areas of improvement for making victims feel they are more involved, more a part of the system and the decisions that have to be made by the front-line stakeholders. I think this will make for a further enlightening discussion, given this morning's topic.

The Chair: Thanks, Peter.

As I indicated, this sort of overlaps from this morning, although there was one area this morning that we didn't get into in any kind of depth. I know it's an area that we need to discuss, and because the second theme talks specifically about the court process, I'm suggesting that we open our discussion by talking a little bit about plea bargaining, how victims are or are not involved in that, what victims believe their role should be, if any, in that part of the process, and what other stakeholders think their role should be.

If you think about it for a minute, the flip side of this may be more conversation on the issue of restorative justice as well, which is a sort of non-judicial approach to the same kind of problem—in my mind, anyway, unless I'm just free associating here, which sometimes happens.

I'm going to go to Steve Sullivan first—the very surprised Steve Sullivan—in terms of plea bargaining, because earlier you said, if I'm right in paraphrasing you, “Victims don't want to run the process but victims do want to have a say”. So how does that translate into something specific in terms of plea bargaining?

Mr. Steve Sullivan: There are a couple of things. Victims do want to have the opportunity to present their views on a plea bargain to a crown, but—and Theresa McCuaig talked about this before the committee as well—when a crown feels it's necessary to accept a plea bargain or a deal or not go ahead with the original charges, I also think it's important that victims understand why. If there are evidentiary problems, if there's a problem of not getting a conviction because the wrong charge was laid.... I think it's important that victims be given an explanation.

How can you practically ensure that crowns do that? Certainly in regard to the efforts by the provinces so far, to date I think we're seeing in Ontario that the provincial legislation isn't good enough. You're basically relying on the good nature of the crown and how busy he or she is and those types of things. One of the things that the women are suing the government about is that they weren't given the chance to talk to the crown about the plea bargain.

• 1410

The way we've suggested it be done is perhaps through an amendment to the Criminal Code—and other suggestions are welcome—that before a judge accept a plea negotiation from the crown and the defence, the judge simply ask the crown, “Have you had the opportunity to discuss this with the victim?”, if the victim wished to speak to it, and if the crown hasn't, that it then simply be delayed until the crown does do that.

I don't think that would be a huge waste of time in courtrooms. If we really believe that victims should have the opportunity to talk to crowns about plea bargains, then we need to make sure there's a mechanism to ensure it's being done. It's no longer good enough to rely on the good nature of the people involved; it needs to be mandatory.

The final thing I'll say, before passing on to someone else, Madam Chair, is something actually that you referred to about restorative justice. During the break I talked to a lot of people, and with all due respect to those around the table, this is not a restorative justice forum.

The letter I got talked about the role of the victims in the process. Restorative justice is certainly a concept that is important, and is growing within the issues relating to victims, but I think what we're here today to talk about is practical stuff we can do for victims, like impact statements, like plea bargains. As interesting as the theoretical discussions about what we should call crowns instead of crown prosecutors, and how the system can maybe be improved in the more general, basic ways, I think we need to narrow our discussions a little bit to talk about what can we recommend to the Minister of Justice to improve the situation of victims within the system now.

I'll leave it at that.

The Chair: Well, Marvin, how do you feel about having a mandatory mechanism to ensure that victims are consulted on plea bargaining?

Mr. Marvin Bloos: I was going to make the observation that crowns are already overworked in most jurisdictions, and heavily so at least in Alberta. If we're wanting these sorts of consultations and the providing of information—and this may well be a provincial matter; I don't know—more resources are going to have to be provided.

Crowns are already busily engaged in just trying to get cases ready for court, and a lot of these decisions in terms of plea bargains and so on are made at the eleventh hour, days before trial. In the rush of things it's very easy to proceed with discussions with defence without contacting victims. That might be on another file or in another area.

I haven't thought at any length about what the role of victims should be in this process. Certainly I have no objections to information, and no objections to discussion, but it may be that their role is limited. They might not be able to do much more than voice their views of the matter and know when the matter's going to go to court for plea, but there may be a number of considerations in reaching such an agreement.

For example, one of the considerations that is used in a plea bargain is the fact that a trial that may last weeks is avoided in return for a guilty plea to a lesser charge. There are a number of other similar kinds of considerations that can go into an agreement. In spite of what the victim may feel the evidence is, the crown may not be quite so sure of its own case, or whether it will proceed successfully to a conviction, so those kinds of issues are weighed in the balance.

I don't have any objection to victims being consulted. I think that might be a very good thing. They'll be able to understand, perhaps, why a particular decision is being made in that area. They may even have valuable input to make in terms of proposed sentence or conditions, or whatever the case may be.

But at the end of the day, we are talking about lots of resources, because although 10% or 15% of cases may actually go to trial, that leaves another 80% or 85% for which there are guilty pleas. I have no idea how many of those may be plea bargains as opposed to a straight-out offer to plead guilty, but if we're now going to incorporate another level of mandatory consultation, this will involve significant resources.

• 1415

Now whether that should be done by the crown—and that's an area I don't think I'd like to see, to have the crown in a sense become counsel for victims—or whether we have another professional kind of body, like a victims' rights centre perhaps or something like that, a parallel agency to the crown that would have access to relevant information.... Perhaps that might be the way to go.

I think this is an area that needs careful thought as to how it's going to be accomplished.

The Chair: Gary.

Mr. Gary Rosenfeldt: Thank you, Madam Chair.

When we talk about crime victims and resources, the two seem to clash for some reason. We never seem to have the resources. With the amount of money that's spent on the criminal justice system, what we spend today on crime victims in this country is really a pittance of the total that's spent.

I understand fully exactly what you're saying, Marvin, with regard to the amount of time, because we deal with crowns all the time and the response we get all the time is that they're overworked, they're underpaid, and they're rushed. We're not even suggesting that the crown prosecutor, in any manner or form, be working for the victim. What we're really saying is that if the crown prosecutor has an opportunity to spend some time with a victim, like 10 or 15 minutes prior to a hearing, to discuss the situation, go over it, and explain to the victim the reasons why there's going to be a possible plea bargain or anything else, it makes it easier for everyone down the road. If they don't do it...I've known cases where victims have actually read about the sentence in the newspaper. They expected the trial to happen in a number of months, they expected to be informed, and suddenly they picked up a newspaper and read that a plea bargain took place and the offender had gone off to prison. They never even had a chance to attend the hearing. That happens quite often in Canada.

We're just saying they want to be more a part of the system. I really think what we need in our courtrooms throughout Canada are proper victims' service programs, law graduates, people who have studied law—not social workers but individuals who can actually work with the crown and explain the process to the victim, work with the victim, and be the liaison, if you want, between the victim and the crown.

Last summer we attended a 745 hearing in British Columbia, and it was absolutely amazing the system they have established out there. I think that sort of program could be developed right across Canada, and it would be good for victims, believe me.

The Chair: That's the third time I've tried to get you people to go head to head on the issue of plea bargaining. I did it for a specific reason. Maybe you can reflect back to me whether I'm getting the mood of all sides of the room, and that is that there's no one here who says the victim should have decision-making or extreme influence in the area of plea bargaining. The issue is information.

Mr. Gary Rosenfeldt: That's right. We deal with crime victims every day from all parts of Canada. We have a toll-free number in our office. The vast majority of cases we deal with are extremely violent crime, in many cases homicide, and most of the victims we deal with are simply asking for information, to be kept informed, to be told why there's a possibility of a plea bargain. They're not objecting to the plea bargain in most cases if they understand the reasons.

The Chair: Priscilla, does that reflect CAVEAT's view?

Ms. Priscilla de Villiers: I think we go a bit further than that. I think one of the problems certainly is that it's sprung on most people, the victim and the community, when they least expect it. The second thing that deeply distresses me is that we still have absolutely no idea how many plea bargains there are in Canada. Why? Why do we not know this? In 1979, I think it was the sentencing commission that found that about approximately 76%-odd of cases were plea bargained. I don't know. What is the position?

• 1420

Surely, if there's a serious case that's going to trial and there's a good reason why it should be plea bargained, first, there should be on record the reason why this is accepted in all cases. Second, there should be some count of how many cases in fact were plea bargained so that we can see whether in fact this is being used, as has been suggested by many people in the system; that more and more governments are really pushing toward more plea bargains because it saves court time. It's not just that it's going to save the victim, but in fact it's going to save dollars and court time. That's not a reason for plea bargaining, in my estimation.

The victim, for example, and the community should know that the plea bargain was done for good, solid reasons. That's all they want to know—not that it's going to save dollars down the road or that it was expedient.

There's often extreme concern on the part of victims when they feel—and this is the case of Karen Vanscoy, who is one of the women in this lawsuit. She felt that the evidence that was put was not correct in her case. She felt this very strongly. This may or may not be the case. It's a case before the courts.

The fact is that we need to clear this up. We must have more transparency here.

I would suggest, one, that the victims should be informed well ahead, not get a phone call after the fact or read it in the newspaper.

Two, they need to be informed as to why. They are intimately involved in this. Trust me, nothing is as intimate as this involvement.

Three, I think there needs to be an official declaration in writing of exactly why this was accepted. I understand a judge has the right to refuse a plea bargain. Surely the reasons should be documented in all cases.

Four, I think it's time we started seeing how many serious cases are in fact being plea bargained. I think this whole issue needs to be more transparent for all sides.

I hope I haven't left anything out.

The Chair: Let me take you back. Steve rightly points out that what we're here to study is the role of victims in the system, and while that may have an impact on the issue of restorative justice, we're not studying restorative justice per se.

One of the first questions that was put before us under theme two has to do with diversion programs. I suppose the same lessons can be taken with respect to diversion programs as with respect to any other part in the system. Maybe we could talk about diversion programs a bit and what role victims of crime should play when a diversion program is anticipated or is thought of for a particular offence, keeping in mind that no category of defence is exempt from the idea of diversion, either pre- or post-charge diversion, although in many jurisdictions, for instance, in Ontario, certain crimes don't go into diversion programs. Diversions programs have become an interesting device that have been used in terms of community and restorative justice. What should the role of the victim be in that kind of system?

Arnold, are you using it in Saskatchewan?

Mr. Arnold Blackstar: In Saskatchewan we have 72 reserves. Out of those 72 reserves they belong to 10 tribal councils, and in the last three years we've been working quite heavily in the area of restorative justice development.

A lot of our programs are diversion and alternative measures programs designed by their own communities.

The role of the victim is very important in these restorative justice processes in that in order to have closure or some movement toward closure, healing, wellness for the victim, the offender, their families, and the community in general in terms of resolving their issue, the victim needs to be involved in some way and that decision needs to be made by the victim.

The role these programs play is really important in that justice committees on these reserves also play a large part in the area of victims' services. They educate and inform the victims in terms of the issues they are dealing with and in the situation in terms of the process they're going to be entering into.

It is an option for all victims and offenders, as well as the community, to decide whether they want to proceed in the restorative justice process.

• 1425

What I'm finding in Saskatchewan is that victims' services are primarily through the RCMP detachments or the city police. For first nations that means they don't meet the cultural needs, the language needs, or the geographical needs—most of the reserves are in rural or fly-in areas where they are not accessible in terms of victims' services. The only alternative is to rely on community justice committees to act as victims' services workers as well. These community justice workers are primarily volunteers within the community who want to work in the area of restorative justice. Again, I guess the issue is resources for community justice committees in that area of developing victims' services with the approach of restorative justice.

In the province of Saskatchewan the department has made a strong move towards restorative justice, but it's also limited. There is goodwill in terms of the Saskatchewan justice department and Saskatchewan social services in wanting to work with communities with restorative justice processes.

However, with legislation such as the Young Offenders Act, under section 69, empowering youth justice committees, or the Child and Family Services Act, where you're empowering family review panels, or even the Correctional Services Act, where you're identifying in section 81 release circles or that type of arrangement with the community.... These acts seem to give an idea to communities that there is some level playing field in terms of partnership in wanting to work in restorative justice, but when it comes to practice in terms of prosecutors, legal aid judges, probation officers, correctional workers, and so on—the front-line workers—there is a reluctance in terms of wanting to work with communities who have restorative justice processes, primarily because there are no clear terms of reference for how communities will play with offenders in a certain process and what safeguards there are in terms of volunteer committees receiving the adequate training and education in terms of the work they are proposing to do.

Primarily with all the sentencing circles, family group conferencing, mediation cases, or other healing circles that we've done in Saskatchewan, overall they have been successful in that there has been a greater focus on the healing as well as bringing about the beginning of closure in terms of crime, not only for the victim but for their families and the communities. That has gained a lot of support in Saskatchewan, primarily because of some of the issues raised, in terms of crowns being overworked, as well as caseloads in probation and youth services being as high as they are.

With respect to the changes in the legislation, I think provincial jurisdictions need to look at working closely with their communities in terms of consultation, in terms of discussions or forums such as this. I think it would benefit in terms of identifying those terms of reference for the relationship that the various stakeholders have.

The Chair: Arnold, maybe you could just answer this question. Is there a protocol in place so that victims are notified and always participating? If a victim refuses to participate, can the sentencing circle or the community justice circle or the process go on without the victim?

Mr. Arnold Blackstar: We require each of our community justice committees to have policy guideline procedures governing the role of the community justice committee, the community justice committee members, and how they're going to deal with each case in terms of case management assessment. Each committee is required to have contact with the victims in the case they are dealing with.

In terms of whether a case can proceed to a diversion, the victim does not have a veto over whether or not the community will take on a sentence. However, the victims' interests are represented by however the victim chooses, whether it's through a letter or a surrogate victim, by video, by an intercom phone, whatever the arrangement the victim feels comfortable with, because the primary concern is safety and again to try to eliminate the revictimization of victims within the process itself.

• 1430

The Chair: Thanks.

Susanne.

Ms Susanne Dahlin: Maybe I can just outline the model in B.C., because we are doing some work in this area. First of all, I'd just like to say that in British Columbia we do practise diversion and we practise alternative measures. Not all diversion and alternative measures are restorative in approach, but in fact some of them are moving to be restorative in approach.

In terms of what we call authorized alternative measures—and that's a crown-based program that we have in British Columbia—we've categorized all our offences so that the lower level offences can in fact be diverted or referred to alternative measures. The first thing we did with all our contractors, who are contracted through our corrections branch, is we trained them through the victims' services division in terms of understanding and being sensitive to the needs of victims, also referring them to various victims' service programs across the province so that they can refer victims to programs. We do not require that there be involvement of victims' services with a particular victim in the lower level offences. However, if we move into higher level offences, which we call personal injury offences, then there is the requirement that victims' services be involved and they be involved separately in dealing with the victim outside of the process to ensure that when they enter into the process, if they wish to, they are fully briefed and have support on that basis. We also have stronger guiding principles by policy around those more exceptional kinds of circumstances if they're involved in alternative measures.

The Chair: Bob.

Mr. Bob Whitman: I used to work with alternative measures programs, and one of the things I have a problem with is that any process that we set up to deal with this kind of thing after a while becomes sort of institutionalized. What I find is that young offenders going through that know the system so well that before they get into that process, they have the expectation about what they will do in order to deal with that. I remember going back to a program—they asked me to be involved because of an issue—and I was amazed to find that the process had never changed over a 10-year period. I find that any program needs to revisit itself in terms of what it's doing.

I wonder sometimes. It's a diversion program, and one of the stipulations of that is that if it is not working well, it can be reintroduced back into the criminal court process. Maybe Nigel can answer this question, but I don't know of any or very few that have returned to the criminal process. My understanding in Nova Scotia is that the crowns have to agree that it's going to go to diversion.

In your experience, have there been many cases that have come back to you because the process hasn't worked?

Mr. Nigel Allan: There have been some unsuccessful completions, and they're referred back. They're docketed and they're proceeded with in regular court.

The Chair: I think what we need to do, though, is focus this on diversion from the point of view of the victim, because what we're trying to do here is get a list of concrete solutions or concrete suggestions that we can make that will benefit victims in the system or further define their role in the system.

Randy Wickins and then Peter MacKay.

Sgt Randy Wickins: Thank you, Madam Chair.

Let me say that I think restorative justice approaches can be used anywhere in the process. Pre-charge, police-initiated diversion is a tremendous opportunity based on the police common-law-given discretion. It can divert cases away from court, involve the people impacted by crime, and come to meaningful solutions.

Post-charge there's again great opportunity working within...we're now into that legal system. We can work with that system. We have done community conferences, family group conferences, community justice forums—whatever term you use, we have done that in Edmonton, post-charge, pre-plea. We've done it post-conviction, pre-sentence, and at that point—post-conviction, pre-sentence—you're getting close to sentencing circles, but there is so much more that happens in a community conference that benefits the victims than just coming up with a more meaningful sentence.

• 1435

And you can do them with serious offences. We need to change our mindset that says, well, we can do this soft, diversionary type of stuff for those less serious offences.

We did a case a month ago that involved a murder. A young woman was not in the store when the robbery was taking place, but nonetheless she was the driver of the getaway vehicle. It was a robbery and murder. This happened a couple of years ago and it just came up where she was to be sentenced. We got all the right people together, those people who were impacted by this very serious crime. Everybody wanted to be there. There was no coercion in getting the victims and their supporters together with the offender and the offender's supporters. Everyone wanted to be there because they all wanted to have a say, and they all wanted questions answered. This was post-guilty plea on the part of this young woman. Everyone was heard on a fair playing field.

We tried to set up a forum where there were fair rules, fair play, and fair outcomes. More happened for those victims in that situation than ever would have happened in court. It was far from perfect. It was not perfect. We did not all end up with a group hug at the end of it. It was messy. There were a lot of tears shed. But it began a process of healing, and I say that's really important, more than just coming up with a sentence. The judge had already decided; before he knew about this type of approach he had already decided to send her away for two years in jail. This young woman had no criminal record and would not survive well in jail. It wouldn't have done anything for the victims. But we did this instead. We didn't solve world peace, but we came a lot further in helping the victims begin a process of healing than ever would have happened had that not been part of the legal system we have right now.

I urge everyone to get away from the idea that we can do this restorative type of stuff for only minor things. Anyway, that's all I'm going to say.

The Chair: Peter Mackay.

Mr. Peter MacKay: Just to follow up on that—and, Steve, for your benefit, I don't want this to become a session that speaks only of restorative justice—my understanding of it is that it does put the victim at the very centre of the process. To bring it back into the context of what we're discussing here, I think what victims would want more than anything else is a say in whether they want to be at the centre of the process. When it comes to violence and crimes of a sexual nature, I've encountered many situations where victims are very glad to have the state acting for them.

I think there's a danger, when we go down the path of restorative justice or alternative measures or diversionary programs, that there is this assumption that the victims do want to play that integral a role. From the strict legal standpoint, I think there have to be some guidelines and perhaps some specific legislative changes to the Criminal Code that set those guidelines, because it's a very slippery slope.

I worry that without at least directives perhaps from the provincial standpoint, with the involvement of the police and even with the involvement of the victims...whether those decisions are appropriate when they're made. When it comes to crimes of violence, I think there's a real danger of exposing the victim to even more trauma if you go that route.

Just as a final comment, what I'm garnering from much of the discussion is that there is a need for a national office, specifically aimed at helping victims to perhaps get the information they need, number one, but to help them make the decisions as to what role they want to play in the process.

Just as a very final point, Madam Chair—and I've said this before—the money that's allocated to the correctional investigator, the budget they have, is just over $1 million. When we talk about priorities of government spending, $1 million into an office as a start-up and an expansion of that national ombudsman and that focal point for victims, which would help establish education standards, which would help establish these types of diversionary programs, help educate police, prosecutors, lawyers, and judges—that I think is something that we have to really work hard to help bring to fruition as parliamentarians.

• 1440

The Chair: Thank you.

Kathy.

Ms. Kathy Louis: Thank you, Madam Chair. I just wanted to share that the instances where I know about a diversion program are cases where in fact there is protocol involved; the victim has input into it. There is discussion. There is consultation, so to speak.

The Chair: Thanks, Kathy.

Michèle Roy.

[Translation]

Ms. Michèle Roy: I would like to address two points. When we talk about assault that what committed and when we say that victims are the people who have undergone the assault and their immediate family, the people who have really been affected by it, we're only talking about part of the reality. When a woman is raped, she's not the only one who is socially concerned by that. She is not the only woman who will from that point on live in fear. When there is a serial killer in a city, it's not only the women who are directly involved and their immediate family who are affected. All women and all children in the community will live in fear and change their schedules, the way they operate, etc.

When we ask victims and their immediate families their opinion on what they expect in terms of restitution and healing, that is part of reality. There is also a social responsibility and a social message that must be sent out. When the government is involved or reacts to situations of violence it is to say that the situation is unacceptable. When an elderly woman is assaulted in the street, she's not the only one who will be afraid in the future. There are a lot of other women who are victims of the climate of terror and violence that takes root. That aspect must also be taken into account. If we only think about being part of a private justice system between the assailant and his victim without thinking about the message that the government and our society need to get across, it is worrisome.

On several occasions a centralized bureau or place where victims could have access to information, etc., has been mentioned. At first sight, I have a lot of trouble imagining how such a service could be effective socially speaking.

For example, we produce guidebooks to help women understand the various procedures they will go through in the justice system. I brought them with me. We have documents on how to work with women. We accompany them. We are present when they appear, when they meet counsel, etc. Everything is based on a personal relationship with them, on a relationship of trust that is established, on a real and close presence. I have trouble seeing how a woman who is in Chicoutimi could call Ottawa to find out when her trial will take place. I also have trouble seeing how the relationship dynamics can be created in the same way. I may go back to that later.

[English]

The Chair: On the other hand, if she were in Chicoutimi and her husband was killed in Edmonton, it might be nice to have a way to link the jurisdictions too.

[Translation]

Ms. Michèle Roy: Yes, there should be a place that we can tell her to contact in the region where the incident occurred, but in my opinion, there would have to be more direct and closer services than those that could be provided by a pan-Canadian agency.

[English]

The Chair: Peter Quinn.

Mr. Peter Quinn: To me, one thing that comes out of this discussion this afternoon is the need to have victim involvement and victim input.

• 1445

If you're looking at alternatives, sometimes with fairly minor, especially property crimes, the person just wants their money back. Alternative measures are great for that, because if someone smashes their window, they want $200 to fix their window, and things like that are tremendous. Sometimes there's more involved. Maybe a baby was sleeping behind that window and they were scared that baby was going to die because of the broken glass. That's where programs that Randy was talking about are fantastic.

I've facilitated some of those processes, and it has a huge impact on the offender because all of a sudden they realize the consequences of their actions. The nice thing is that by asking the victim, it makes things really simple. I think professionals within the criminal justice process tend to make assumptions too often. They're thinking about what if and what if, and they're making assumptions on behalf of people rather than just simply asking.

People have concerns about plea bargains, but victims have input with victim impact statements at sentencing. It doesn't mean the judge is going to say “Oh, boy, the victim said this, I'm going to have to go ahead and sentence because the victim told me to do that.” To me it's the same with plea bargains. It's simply allowing them to have input into the system, letting them know the parameters that that professional within the system has to work within and given that input to find out, because most of the time when you actually finally do ask what you would like to see out of it, it gives you so much more information, especially with conditional sentencing.

That's certainly something that a lot of people look for with plea bargainings as well. Often prosecutors simply don't have the information when it comes time to do the sentencing. If it's supposed to be a meaningful sentence, they don't have that specific, basic information that they need to make it a meaningful sentence. To me, when you talk about a meaningful sentence, who is it meaningful for? Society and the victim, or just society? I think it just goes back to a basic thing where you simply ask and have some system in place where people are asked.

The Chair: Thanks, Peter.

Priscilla.

Ms Priscilla de Villiers: I think Michèle Roy's point was very well taken. I have a lot of concerns about victim participation in restorative justice methods. It's my understanding that the women in a number of communities have come out very strongly against it. I'm concerned about the coercion element. We've spent, I don't know, 300 or 400 years or something putting a barrier between the victim and the offender. I think there's a very real need for that and somebody who can be impartial and can be at arm's length.

If one is in a small community, I think the feeling of coercion, even if it's an unspoken pressure, on the victim is enormous, and I'm merely relating what I've heard, so I'm putting this out for talk. If you refuse to look at diversion or alternative methods, then you are in effect condemning somebody within a small community, possibly within a family, to prison possibly.

I also think it's often extremely difficult in cases of sexual assault and murder to face the offender, this one-on-one consultation. I think the measure of how much good it does to a victim and so on...I'm not convinced about that. I'm not throwing the idea out. I'm just saying these are some of the concerns that have been raised.

I believe if you have extremely sensitive people conducting the hearing, if you have extremely clear protocols in place, if you have ideal conditions, it almost certainly sounds as though it would be exceptional. What concerns me is that I've come across any number of well-meaning but extraordinarily clumsy people who really don't understand the issues, who in fact would cause more harm than good. We have to realize that this is—and I'm talking only about serious crime now—very often instead of going through the formal justice system, so there is the societal element, which Michèle brought out.

I'm personally very cautious about this. I feel that to discuss it here...there are so many unanswered questions that I'm really not sure about at all. I haven't been convinced at all on the measure of real victim satisfaction as opposed to a sense that there's been some sort of community solution to this that appears to be better than say something like incarceration.

• 1450

I think that's probably it. Thank you.

The Chair: Thanks.

Joanne Marriott-Thorne.

Ms. Joanne Marriott-Thorne: I just wanted to follow up on what Michèle and Priscilla have said.

Although we're very supportive of restorative justice in victims' services in Nova Scotia, we're also very concerned about the difference between theory and practice. For instance, in theory, New Zealand has had great success with restorative justice, and they've had this in place for a few years now. Approximately a year ago they did an evaluation on restorative justice and one of the things they found was that there was a low percentage of victim involvement and victim participation. When they tunnelled a little bit further, they found out that often that was due to the fact that the victims had not been contacted with sufficient notice to be able to attend the hearings and there wasn't sufficient flexibility to change the date of the hearing and what not to accommodate the victim. I just put that forward, again, as a cautionary note.

I've spoken to a number of women up north who have said to me that in theory they too agree with the principle. In practice, some of them do feel coerced and intimidated, and they feel they have been silenced because it's not safe to speak out in their community. I know as a victims' services person how difficult it has been for me to speak up and put in cautionary notes without being perceived as putting in barriers to this new process. That's a concern I have.

The other thing is again the difference between theory and practice in relation to an office for victims in this country and tying this in with restorative justice. Well, it seems as though we may be forgetting the theory here, and the theory is that there have to be community-based resolutions in order for this to work. There has to be sufficient support within that community for it to work for both the victim and the offender. There has to be sufficient monitoring of the resolution for it to work.

If we're talking about the possibility of a national victims' office to deal with these kinds of things, then I think we've already moved away from and forgotten what the principle is here and what the theory is here.

I'd just like to say again—I think I referred to it this morning—that there is in fact a victims' services component in every province and territory in this country. As directors and managers of victims' services we've had the opportunity over the last couple of years to form a network for sharing information, sharing best practices, but also sharing in terms of referrals.

Three weeks ago there was a homicide in the Yukon. The connection was made through my colleague in the Yukon and me with the services that are available.

I wonder if we're not really looking sufficiently at what has already been built and how we can use those services more effectively before we perhaps start building other silos.

The Chair: Arlène.

[Translation]

Ms. Arlène Gaudreault: Like the people who have spoken before me, I am not very comfortable with the idea of restorative justice. As Canadians, we need to question our criminal justice system. When we talk about restitution for victims, we need to look at what the various provinces are doing with respect to compensation.

• 1455

Compensation programs have been considerably cut back. That is one way for the government to provide restitution for victims. However when we talk about restitution, we also need to talk about compensation measures.

I hope that we will get into the issue of compensation measures, because for all intents and purposes, they're almost never applied. Those sentences are never applied by the judges. Of course, there are interesting experiences, and you have given some examples. Other participants have given examples of conciliation measures between victims and offenders. However, I think that at present, these are very ad hoc experiences.

I wonder if in a number of these cases, like the one referred to by the person who just spoke, victims aren't used and are not forced to enter the process. We must also look at the extent to which alternative measures and diversion programs are not just a way to reduce prison populations and save the government money, at a time when it is experiencing huge financial difficulties.

Diversion is almost automatic for some offences without victims being informed. Notices are sent out, letters saying that the matter is closed, etc. In Quebec, alternative measures revolve around the offenders. They are measures to help delinquents reenter society. They involve community work. However, there are very few measures for victims in our province.

That raises the problem of resources for the alternative measures and the quality of training for the professionals who work with those resources. I don't know what the situation is in the other provinces, but in Quebec at present a lot of responsibilities are being offloaded on to the communities. They are being asked to do a lot but they are not being given the resources. The network is running out of steam and we are feeling that at home. The situation is perhaps the same elsewhere.

We need to be careful with the alternative measures and diversion programs, because they could well have exactly the opposite effect of what we want to achieve. Our system gives the impression that there are too many people in prison, that we are too strict with delinquents and that new initiatives must be invented, but I am not sure that victims are informed, that they really participate in the process and that they really benefit from it. I am under the impression that there is currently a danger for victims. There are also questions of ethics that need to be examined.

[English]

The Chair: I want to take us to another completely different subject matter in a minute, but let's not lose sight of the fact that many of the alternative justice techniques that are being employed in Canada and some that are being advocated are being advocated because of extreme cultural differences between our culture, the mainstream culture, and native culture. So what Arnold and Kathy are talking about—and it's very important for us to recognize this—is a way of dealing with justice within their communities that suits their culture, the needs of their culture and the beliefs of their culture. It's very important that we not forget that.

What Arnold is talking about is a system that's been devised to suit the culture, to suit those 10 bands and their nations, and it's very important for us to recognize this. I think, Kathy, that's reflective in some of the work you're doing as well, is it not?

Just to keep you moving, on page 5 at paragraphs 3 and 4 we talk about special protections that are now institutionalized within the criminal justice system, and in particular within the trial process, to offer certain protection to witnesses and to victims in sexual offences, prostitution offences, and extortion, by prohibiting publication of details or identifying information, first of all. These are publication bans that are intended to protect victims.

• 1500

Second, under paragraph 4, there are special protections for people to testify, for instance, behind screens or by means of closed-circuit television.

I lumped them together not so much because they belong together, because they are really two different types of protection, but because they are special protections that are afforded now in black and white in the Criminal Code and the evidence act, within the system, to these victims and witnesses.

I had an interesting conversation at lunch with Nigel Allan. When you're the only crown attorney, Nigel, you're going to get picked on a lot, I guess. You and I were talking about not using them; that it's sometimes a problem from the prosecution's point of view to use screens or special devices. Did you want to comment on that, now that I've started you halfway through it?

Mr. Nigel Allan: Yes. There are times when they're absolutely necessary, when you have an extremely vulnerable victim who finds it almost impossible to testify in any other way. My problem is that it's often used as a crutch, and it's communicated to victims that these are techniques that can be employed to make the process a little less difficult. But there are certain requirements prior to those techniques being used.

Maybe because I've been doing this for a long time I always prefer to have a witness testify in the traditional way. I find the impact is much more compelling and I believe it is much more persuasive from the perspective of the judge to have testimony given in a traditional way.

So my position, right or wrong, is that unless there's a really compelling circumstance, I always endeavour to create a rapport with the witness and the court by face-to-face contact.

The Chair: Peter MacKay.

Mr. Peter MacKay: Madam Chair, you're aware that we were recently dealing with legislation that removes physical barriers in a courtroom that will allow visually impaired individuals or hearing impaired individuals to testify or participate more fully in the process, to bring an interpreter with them.

I think there's a real subtle but meaningful difference between the types of physical barriers that can be used in this particular area we're talking about. I've seen closed-circuit and screens used in a courtroom, and I think there is a very important element that Nigel has raised, and that is the optics in a courtroom, particularly in a jury trial. Most high-level crimes, crimes of violence, sexual assaults, very often will wind up in front of a jury.If you have a child witness, for example, testifying in another room through closed-circuit camera, that further sterilizes the process.

There's been some discussion about that this morning, how in a courtroom we want to try to keep it sterile, we want to keep it unemotional. But for justice to be done and to be seen to be done, for jurors and judges who are making those determinations of fact, that emotion is an important part of the process—a very important part. Again, I think it highlights the individual discretion that crown attorneys have in the presentation of a file.

The input, I guess, and the interaction and the more interaction they can have with a victim or a witness.... I don't think you can overemphasize that in our justice system. That again falls back time and time again on just sheer volume, the number of cases, and the time a crown prosecutor has to interact and prepare for a trial. If there's any emphasis that we can put on that....

When I hear restorative justice, sometimes I think of restorative funding, which should come from government as opposed to restorative justice.

The Chair: Gary liked that. That may be our catch phrase for this hearing.

Go ahead, Joanne.

Ms. Joanne Marriott-Thorne: Just a point of clarification in terms of something I said before, and that is in relation to a national office. I very strongly support a national office, but the clarification is for a policy and coordination role for that office. I think we are already seeing significant pluses coming out of that network being established, but not a direct service kind of component.

• 1505

The Chair: I understood that. Did you have a comment on this issue?

Ms. Joanne Marriott-Thorne: Yes. Just in terms of safety, I think, as Peter has mentioned, often crown attorneys spend very little time with victims of crime. I think it's extremely difficult for them to assess the safety issues behind the victim wanting a screen or whatever. I just go back to the points Irvin Waller was making this morning.

I don't think in the criminal justice system we have put the kind of emphasis on the victim's need for safety. And whatever it is the victim needs to feel safe in that environment, I think we have to more thoroughly consider than we have in the past.

The Chair: Steve Sullivan, does the centre have views on...?

Mr. Steve Sullivan: We support in general the use of the screens and the closed-circuit TVs. Obviously we use them on a case-by-case basis. The concern raised by some of the comments from Mr. Allan and Peter is that maybe it's optically better to have a young girl crying on a stand, but that young girl has to walk out of that courtroom too. If a screen or a closed-circuit TV and those types of things can help her deal with the process better, because it is a difficult process, then I think we should be encouraging the use of those screens. My understanding is that the use of them has been upheld in the Supreme Court.

Obviously you can't use them in every case, but for the protection of young witnesses I think it's an option that should be presented to them.

The Chair: Elizabeth, I'll come to you in just a minute. I just want to ask Lynne Kainz, because I know she's had some experience—we've had some joint experience—with the use of screens, as someone who's going to get somebody ready to go to court, how do you approach that issue? Do you tell them you have a right to use the screen, or do you tell them it may be possible, or do you leave that to the crown attorney? How does that work?

Ms. Lynne Kainz: We leave that to the crown attorney, but we advocate. Certainly we have assessment capabilities and we do assess what the needs of that child are. We mustn't lose sight of the fact that the purpose of the screen or a closed-circuit is to obtain a complete and candid account. That's what this is all about, I would think, in the pursuit of justice and truth, that we are able to get the complete and candid account.

We don't let them know that that is a possibility, but certainly we bring those concerns of ours to the crown attorney, with examples of why we feel this is the only way we will obtain a complete and candid account, and leave that up to the crown attorney.

Very often the child's therapist is also involved in bringing forward those concerns to the crown.

The Chair: So when you speak to the crown then, you might say, “Look, I don't think Shaughnessy Cohen is going to testify in a straightforward manner because she's so intimidated, unless she has the screen”, or the flip side, “This woman is really tough and I think she can do it, and I wouldn't even raise the issue of the screen.” Is that how you would...?

Ms. Lynne Kainz: Oftentimes we don't have any idea. A child may be presenting as very confident and not fearful, and when they get to the courtroom and are confronted with the accused, they shut right down. So we don't always know. Human behaviour is not predictable.

But certainly children will cry at the mention.... When you're explaining the court process and you're explaining that the crown attorney will help you tell the judge what happened and that the accused has a lawyer who's going to help him through the system, suddenly the child realizes that the accused is going to be there when you're talking about who the players are, and they will break down and cry. They will say they're afraid. They'll tell you they don't want to be hurt any more, they don't want to see him, they can't see him.

We can't ignore that. Those provisions were there to assist child victims through the court system. We don't use them very often. Certainly I agree with the crown's position; where the child is able to do it, obviously that is preferable, but I am concerned that that child has to walk out of the courtroom. We don't want to further destroy them and devastate them through the process. So if we can get the truth before the court and at the same time protect the well-being of that child, then I think you've served both purposes.

• 1510

The Chair: Elizabeth Sheehy.

Prof. Elizabeth Sheehy: I just wanted to make the point that in this context I can see a real distinction between what you might call victims' rights and equality rights. I can see in fact that if you wanted to talk about equality rights for children, you'd actually be worrying about the kinds of questions that are being asked of children, whether they're appropriate for their age and development, and putting some limits on the kinds of tactics and techniques that are used in cross-examination and the evidence-taking practices in court. I think that's also very significant, because yes, a screen may permit the kid to testify, but the child is still seen by the adult, and I know that's also a terrifying experience for the child to know: I can't see him, but actually he can see me.

I don't think these kinds of things go far enough in terms of ensuring that children can give their evidence and have it assessed fairly in a way that's commensurate with their rights and their rights to equality in our courts.

The Chair: Rick Prashaw.

Mr. Rick Prashaw: I'm from an organization that is an advocate of restorative justice, but we often say we have an amber light. When I go to an amber light my tendency is to rush through, although I think the law says you're supposed to proceed with caution, and if you can't proceed with caution you don't go through the intersection. I think it's still a good image if we remember what an amber light is really supposed to be.

We've been flashing an amber light with respect to restorative justice, believing in some of these approaches, aware of some of the horror stories, believing that we don't compare it to Utopia, but we compare it to how existing justice is playing itself out in various communities. Language is important because to us it's restorative-transformative-satisfying-healing justice. How do you restore a loved one? You don't restore a loved one, and some victims have rightly told us that they're deeply offended by the term “restorative” for the most serious end of offences. So language is very important.

When people have conditions of unemployment and illiteracy and alcoholism and we're going to restore them to conditions, we want to transform those conditions. We want it better than the way it was. That's why we know it's not just Parliament and not just politicians but the whole community that has to care deeply about these issues.

I just believe strongly that when you bring more players into the decision-making process without making any one of them decision-makers—you don't make victims decision-makers; you make them active parts of the decision-making process. You tap a wisdom and a creativity that isn't there when you have only the players.

It's something like the Atoskata program in Regina for the Oldsmobile gang, which took a fondness to Oldsmobiles. They looked at compensation for victims, but the creativity that was tapped in that program came when they figured these youths didn't have the wherewithal to pay back their victims. What's the issue here? They don't have jobs, they don't have a trade, they don't have a profession. So they cobbled together corporate, insurance company, and business folks who looked at this issue in their community and said we're going to teach these youths a profession. Out of the money they earn we're going to have them give most of it back to their victims and keep a very small amount to remind themselves what a hard day at work can produce.

It's that win-win situation that other folks talked about, when you start tapping that creativity. Sometimes restitution programs have lots of problems because there's just no money there, but when you start getting more people at the table or in a circle, in a forum, the solutions are out there.

We have many of the concerns that others have with respect to restorative justice. When Peter talks about—and it's such an important question—putting the victim front and centre and do they want to be front and centre, it's such a legitimate question to ask. We're hearing that some do and some don't. The do's and don'ts change in the process as people move.

I'd go back to the amber light. I have to learn this myself too. I'm supposed to slow down at an amber light and look all ways and not proceed without certainty that all these cautions have been addressed.

• 1515

The Chair: Michael, can I ask you about defence reactions to these screens? Have they become something that defence lawyers have been able to adjust to? Do you agree with what Nigel has said, that they can work to the crown's disadvantage as well as to the crown's advantage?

Mr. Michael Lomer: My experience with the screens is really relatively limited. They had a vogue when they first came out and then they very quickly subsided, so you rarely see them any more. I think in part Mr. Allan's and Mr. MacKay's concerns are legitimate in terms of the presentation of evidence. The reality of a young child testifying before the tryer of fact can have an impact that is lost when one removes—one remove either by the screen or two removes by the video camera. A camera doesn't catch everything.

My sense is that the reason they are used less now—and again it's only anecdotal—is because the crown's perception has been primarily that they aren't as effective in getting the case for the crown before the tryer of fact in a fair manner.

Hearing the other side of the issue, the safety issue, which is quite frankly an issue that I don't address as a defence counsel—it's something that's really outside of my frame of reference—I start thinking, well, how can you possibly balance those two issues? The safety on the one hand dictates the removal and the witness outside, which quite frankly, from a defence point of view, I don't mind. To be perfectly candid, it's not that harmful to have the witness removed or protected by the screen. But how do you get the story told in the best way you can if you do that? That's the only question I pose in return.

The Chair: Colette.

Ms. Colette Mandin-Kossowan: I didn't want to simply address screens. We were talking about restorative justice and back and forth on other issues.

The Chair: You people will not be disciplined.

Ms. Colette Mandin-Kossowan: If we're here to discuss the role of the victims in the justice system, the common thread is that basically victims want their human rights protected. They want to be safe. They have a right to life, liberty, freedom, and security.

If I'm a victim of domestic violence and I feel threatened by the offender, I expect I will have some kind of protection throughout the whole process and following the sentencing, which rarely seems to occur.

The whole thing about information that we discussed this morning...I find this very frustrating. I'm frustrated because when a crime happens there are two parties. There is the offender and the offended. The offender has access to any bit and piece of information that he or she needs, and the victim has to work and struggle. One only has to ask Brenda McDonald how much her phone bills and postage bills have been for the last two years—and myself and Priscilla and people like us. The cost to us personally is huge.

I'm asked, and have been asked over and over and over again, why do victims want this information? The only analogy I can use that seems to work and make it tangible is a medical example. If any of us had a brother who had cancer and he was unable for some reason to speak, whether through trauma, loss of voice or whatever, and he needed an advocate and we had to make decisions on his behalf, we would want to know everything about the medical condition.We would want to know what the diagnosis was, what the prognosis is, and what our choices for treatment are so that we can incorporate that into our decision-making, planning for the future, and into our lives so that it makes sense.

Part of that whole aftermath of crime is incorporating it into your life, because it doesn't make sense. That is why victims need information. How can you make reasonable decisions about your future? The whole stage of the justice process and its aftermath, including after sentencing, effects everything you do.

If there's a parole hearing coming up, as in Brenda McDonald's case, you have to plan for it. We have jobs, we have lives, and we have trauma. You have to balance all of this and plan for the future.

• 1520

Whether we're talking about restorative justice or conditional sentencing or plea bargaining or how to provide information, providing those basic rights, information about the process, all along the way—and I hope that medical model makes it a little more concrete and easy to understand, because I get frustrated massaging that same question a million different times so that it's palatable for people to understand. I'm sitting here thinking, okay, is it palatable yet, is it palatable yet, is it palatable yet? It's frustrating.

The other thing that came up over and over is the office, and I don't know if this is going to be out for discussion later. The advocacy work I do personally—I will make this personal because I can talk about personal cost—and I know Priscilla and Brenda and many at the table do, has a huge personal cost to both me and my volunteers. We're all volunteers. I'm a volunteer. I've been working full-time for four years. It's probably cost me $20,000 to $30,000 just to make sure there's an advocacy voice for victims that represents a general complement of issues over the last three years. I know that many of the volunteers who work with me—we have a couple of dozen solid volunteers at CAVEAT Alberta—have incurred huge personal costs as well.

When we're talking about an office for victims of crime, we look a lot at the American model and we look at the limitations of the service we can provide as volunteers. We have huge limitations here. Whether a victim gets this kind of advocacy, general advocacy at all depends on where they live, whether there's an advocacy group near them; it depends on volunteers and volunteer time, on organizations that have no stable funding and no legal expertise. I'm a dental hygienist. I have no legal expertise. Because of my experience in the justice system, I'm able to share information and help with and find a network of information for victims of crime.

I think victims deserve better than this. So when we're talking about an office for victims of crime.... I think Joanne related that concern that it's a victims' services provider. I think there has to be some kind of general advocacy, as there is in the U.S., that will provide sustained growth in the area of victims' issues; input into legislation; advocacy; set the benchmark for support—right now in Canada there's no benchmark for support or advocacy for victims right across the board; possibly provide funding; definitely academic research and expertise and proper analysis of victimology, which doesn't exist here right now; the sharing of information between the provinces so that if something happens to your family in another province, as was referred to earlier, there is some kind of network and infrastructure of sharing of information, and this office may not provide direct information but it knows exactly where to send that victim; provide a resource centre; and promote public education.

The reason I had to get that off my chest is the office for victims keeps popping up as a dozen different things, and as an advocate who has worked in this area and has provided this kind of advocacy, I think this is what we need. I absolutely urge strongly that we have an office such as that.

Whether we can afford an office for victims of crime like the U.S., I don't know, but I don't believe that our organization should have to constantly canvass the U.S. office for information. I think we should have our own that reflects the Canadian experience.

The Chair: Thanks, Colette.

Irvin, and then, Chuck, I'm going to give you the last word before the break, and that'll be the last time I do that.

Irvin.

Mr. Irvin Waller: The basic question you asked us to address was called the role and rights of victims in the pre-trial process. It seems to me that there are two very practical things that need to be dealt with here.

One is some way of making more explicit what really is the role of the victim at each of these stages, and by that I mean what are their interests. The principles that were adopted by the federal-provincial committee in 1988 talked about:

Where the personal interests of the victim are affected, the views or concerns of the victim should be brought in.

• 1525

There's a similar statement—a clearer statement, in my view—in the UN declaration.

It seems to me that we need in the Criminal Code something that defines a bit more what are the interests of victims in all of these issues, in the charging, in the determination of dates, in what happens during trial, in what happens in sentencing—that whole procedure. That needs to be laid out.

I think we also need to consider quite seriously in this country giving some sort of standing to victims in each of these critical points in the process so that their interests can be defended. We provide defence counsel for accused persons because the process is complicated and because crown prosecutors won't necessarily look after their interests—in exactly the same way I think we need to be considering very seriously the provision of legal advice and legal representation at these various stages. Maybe we don't need to do it for shoplifting cases against big stores, but certainly in the more serious cases, like murder, sexual assault, robbery, cases involving serious offences against children, I think we have to begin to look much more closely at this.

That's the main point I wanted to make. I want to make one other comment, which relates to the Kitty Nowdluk Reynolds case. This is the case, of course, where the powers of the system to compel attendance became so important. A woman who had been assaulted—I think sexually assaulted, I'm not sure—then spent a week in various jails across this country and was transferred to court in the same paddy wagon as the offender. She was living in a jurisdiction where there was some sort of victim-witness program that for whatever reason the police didn't refer her to.

It seems to me that this illustrates the incredible power the state has over victims at the present time. That's not the only case. There have been other cases—wife battering cases—where women have been sentenced to one month in prison. If you actually look in the sections in the Criminal Code that relate to this, these powers are huge. There's been very little concern for victims.

When I heard the debate going on today between the defence and the prosecutors, it just made it so clear to me that if we're going to see the kind of change we need to have a victim-sensitive justice system in this country, then we're going to have to use much heavier measures, measures that would give standing to do that.

Madam Chair, you talked about screens and closed-circuit television. We live in the video age. Was it really necessary to take Kitty Nowdluk Reynolds from Surrey, British Columbia, to the place where the trial was taking place? The lawyers now quite regularly use video systems. I think we need to find a better balance between the need for prosecutors to have a good witness, the defence to have a plausible witness, and—there's a third party here—the individual person who was the victim of a crime has interests, and these interests are not currently represented, are not protected, and we need to do a lot more thinking about that. It seems to me an office for victims of crime is long overdue so that we have a force that is looking at how we can explore—experiment with, if you like—some of these new methods to ensure that those interests are protected.

The Chair: Thank you.

Chuck Cadman.

Mr. Chuck Cadman: Thank you, Madam Chair.

I'll just make a brief comment because I know everybody wants a break.

Just to expand on what Colette was talking about, why do victims want information, I think in a nutshell, when you become a victim of crime, the control of your own life is taken away from you, to varying degrees, depending on the severity of the crime. I think being included in the process and being notified, being given notification and given the proper information, gives you some semblance of control over your life. That does not mean you want to take control of the system or the process. It just means getting some control back into your own life, and I think that's really the bottom line.

The Chair: Thanks, Chuck.

All right. We're going to take a coffee break and we'll be back here in 15 minutes. We're back on time, folks.

• 1530

• 1603

The Vice-Chairman (Mr. John Maloney): Ladies and gentlemen, if I can bring us back to order again, our chair has had to vacate for a few minutes, but rather than wait till she comes back, perhaps we can start on the issue of victim impact statements. We've already touched upon these, or some of the speakers have, and I think we'd like to open that issue up again.

Does anyone have a comment? Go ahead, Colette.

Ms Colette Mandin-Kossowan: Thank you. The thing I want to say about victim impact statements is I hear over and over that many victims don't want to fill in a victim impact statement, and that's true. But I think we have to examine the reasons why that happens. It has to do with disclosure. It has to do with fear of personal safety and intimidation. It has to do with the sharing of personal information. Sometimes victims don't receive the information about victim impact statements so they're unable to meet the opportunity. Sometimes they miss the opportunity because, especially for serious, violent offences, the trauma is so great that it takes them months and months and sometimes years to reach the point where they would be able to even put pen to paper or voice the impact a crime has had on them.

So I just wanted to clarify that. I've heard far too often that victims don't want to fill in victim impact statements. There are some who do not, but there are some who cannot, and that has to be considered.

• 1605

The Vice-Chairman (Mr. John Maloney): Paul DeVillers.

Mr. Paul DeVillers: Thank you. In preparing for this forum I held a local forum in my riding. One of the panellists was a provincial court judge. In Ontario, apparently, the victim impact statement is a form. His complaint was that the form is very rarely, if ever, completed. I don't know if, as Colette indicated, it is because the victims don't want to or if it's because the police, the crown, or the people intervening on behalf of or working with the victims don't assist them.

I'm wondering if that has been the experience. I'd like to know if others working in the field have found that as well.

The Vice-Chairman (Mr. John Maloney): Gary Rosenfeldt.

Mr. Gary Rosenfeldt: The reason they're not completed sometimes is because there are a lot of questions on a victim impact statement that are presented to the victim that don't pertain to their case. Sometimes it's very difficult when victims are trying to deal with a pre-published form. In a lot of cases maybe there wasn't a financial loss; maybe there wasn't a particular thing that affected their case that a question asks about on a form. Victims have a difficult time filling out the statements.

I guess the frustrating part for victims too, I find anyway, is that they put their heart and soul into this and then it's given to the crown prosecutor. The crown prosecutor takes his black pen and begins to cross out everything they feel shouldn't be presented to the judge, to the court. It takes away an awful lot from the victim's input into the system.

Another problem we have encountered with many victims, of course, is the writing of letters to the National Parole Board with regard to the release of the offender on parole. Of course, everything a victim does is given to the offender—their address, any letter they write to the National Parole Board. The offender has to get copies. The victim is in a very difficult situation.

First of all, there is concern with regard to their own safety with presenting a victim impact statement, especially to a parole board. You can understand why victims have some concern.

I agree with Colette too that most victims probably want and would present victim impact statements, but there is a great deal of difficulty and they don't always have the support services to help them with it.

The Vice-Chairman (Mr. John Maloney): Thank you, Gary.

Susanne, you have a comment.

Ms. Susanne Dahlin: Yes. I was going to say that I think originally the victim impact statement was introduced to be used at the time of sentencing. It was thought to be a good thing for victims, and I think generally it still is. However, we've asked our federal counterparts to do some research in this area because I think we're finding now that some victim impact statements are being abused by defence in terms of the personal disclosure issues. A number of victims, especially around sexual offence cases, are hesitant to fill them in because of that. I think what started out as a good thing for victims now may not be such a good thing for all types of victims. We would like to look at that procedure.

The Vice-Chairman (Mr. John Maloney): Brenda McDonald.

Ms. Brenda McDonald: I just want to say one other thing about the victim impact statement that I did for our trial. When I wanted to update one for the appellate, I was refused for the appeal part of it. But those three judges did make comment to the original one, stating that because there was no mention of a prior history of violence in Ralph Klassen's history in my victim impact statement and my sister's, it was just one more way of showing he was a non-violent person. When we received the form for the victim impact statement, we were told we had to limit ourselves to putting in the victim impact statement only the emotional and financial effects the crime had had on us. We were quite stunned when these judges, during the appeal, said that even in the victim impact statements there was no mention of any kind of violence in this man's past and therefore we have no evidence of a violent history and the sentence will be upheld. We were very confused as to what could go into the victim impact statements, and then once we did fill them out we were very confused that we may have been able to put in more about his character that we had seen.

The Vice-Chairman (Mr. John Maloney): Joanne.

Ms. Joanne Marriott-Thorne: We feel very strongly that the victim impact statement is a sentencing tool. It should not be used as evidence during the trial. Therefore we hold back filing victim impact statements, which are filed through our victims' services division, until after a determination of guilt.

• 1610

The reason why we feel very strongly about that is because the victim impact statement is written without legal advice. We're very concerned that it can be used against the best interests of the victim. The victim, feeling that they are implementing a right that has been given to them, writes a victim impact statement prior to a determination of guilt, hands it over, and then it's used against them to attack their credibility, for instance. We therefore have taken a stance that we don't file them until after a determination of guilt.

Having said that, often it becomes a hollow right, because there isn't then an adjournment for the filing of the victim impact statement. So a victim goes through the process of writing a victim impact statement, doesn't file it in advance, because we don't feel it should be used as evidence during the trial—it's clearly against the spirit that we see in the legislation—and then they lose the right.

We have some real concerns about the Criminal Code provisions as they stand right now.

The Vice-Chairman (Mr. John Maloney): Arlène Gaudreault.

[Translation]

Ms. Arlène Gaudreault: One of the problems with the victim impact statement, as Mr. Rosenfeldt mentioned, is that the prosecutors often do not report on it to the judge or the judge does not familiarize himself with it. Instead of being a privilege or a right for victims, the statement becomes an additional difficulty. It takes time to fill out such a statement and they require a lot of energy, but they stay in a Crown prosecutor's file. We have been led to believe that with the amendments to the Criminal Code on sentencing, the judge will be required to take the statement into consideration. We hope that that will be the case and that this matter will be followed up.

Both the judges and Crown prosecutors should perhaps be made aware of the importance of this statement for victims in the healing process. Judges have told me: "Ms. Gaudreault, it is true that the victim impact statement is a good tool, but we have seen a lot of victims of sexual assault in our practice and we do not need a victim impact statement to understand the consequences of such an assault." I would not say that all judges and all prosecutors lack sensitivity, but work does need to be done to raise the awareness of judges and prosecutors.

One of the objectives of the victim impact statement was to ensure that more restitution orders would be handed down to victims, since more information, namely on the financial consequences of the assault, was available. It would be a good idea to examine this aspect. As far as I know, it has not lead to an increase in the number of restitution orders. I think that aspect should be reviewed and judges should be encouraged to use the information contained in the statement so that there are more restitution orders.

I do not know if it is done that way in the other provinces, but in Quebec, agreements are now in place to allow the victim impact statement to be sent to the Correctional Service of Canada. It is done on an ad hoc basis. So the victim impact statement can be sent to the institution where the inmate is taken.

We can see some advantages to that way of doing things. I participated in an investigation on a spectacular incident where a former inmate killed his spouse. I also have 10 years of experience as a parole officer. So I have often seen and read files, and I know that there is very little information on the short and long-term consequences of victimization.

• 1615

So for the Correctional Service, the victim impact statement is a way of knowing what happened to the victim in terms of the psychological, financial and social consequences.

We can agree with that way of proceeding, because it makes it possible to assess the seriousness of the offence and hold the offender accountable, but I think that we need to be very cautious. Victims need to know that their statement is being passed on. Perhaps we should think about protecting certain parts of the statement in order to ensure the victim's safety. We are moving more and more towards protocols for transferring the victim impact statement to Correctional Services.

I do not know if that is done in the other provinces, but these exchanges have started to take place in Quebec. Victims are now advised that their file may be transferred to Correctional Services, which wasn't the case in the past.

When these projects were tested in five provinces, the Canadian Department of Justice conducted a very interesting assessment that showed the reluctance on the part of the various stakeholders, particularly the judges, prosecutors and the police, to use this tool.

It would be interesting for the Department of Justice, perhaps in conjunction with the Solicitor General, to take another look at that assessment to see what it really translates into in terms of sentences, for example. Are the victims satisfied? To what extent are the statements used in these files? What do they contain? What specific problems do the victims encounter? It would be very useful to update the situation at this point and see how it is applied throughout the system. We often think about the adult system, but in Quebec, in the youth justice system, the victim impact statement is not currently in force even though the Criminal Code was amended in 1988.

So I think the statements are used quite parsimoniously by the provinces and that it would be a good idea to assess this issue.

[English]

The Vice-Chairman (Mr. John Maloney): Thank you, Arlène.

Peter MacKay.

Mr. Peter MacKay: I just want to indicate that my experience has been that most victim impact statements, if received in a crown office...I would then seal them and ensure that they were in the judge's file for future reference on the outside chance that there was a guilty plea and there was a desire on the part of the defence and the accused to deal with sentencing right then and there.

On the other side of the coin, the defence inevitably has the option to request a pre-sentence or pre-disposition report. I don't think the crown prosecutor should have any hesitation at all to get up and request time for a victim impact statement to be filed if that is the desire of the victim. Again, it comes down to that being communicated to the crown. Having a sealed copy in the judge's file has I think been the experience in Nova Scotia.

The Vice-Chairman (Mr. John Maloney): Thank you.

Peter Quinn.

Mr. Peter Quinn: I would like to echo a lot of the sentiments already made about victim impact statements. They are an extremely valuable tool for people, but there is a lot of concern about disclosure and being used before sentencing. People are really hesitant for good reason.

With regard to that, it is interesting that in Alberta, initially when it was introduced it was that judges may consider victim impact statements. It was quite surprising to find out that a third of the judges weren't considering victim impact statements. Fortunately, they changed the legislation to mandate that judges would consider victim impact statements. That has been a positive change. But the disclosure of the statements is a concern to a lot of people.

The Vice-Chairman (Mr. John Maloney): Thank you.

Marvin Bloos.

Mr. Marvin Bloos: I think it's important to understand that victim impact statements are part of the Criminal Code. There is a right to put them into the process, but on the other hand the offender has a right to see those. If we absent the victim impact statement, if defence counsel says a bunch of good things on behalf of the accused, the crown does not have to accept that and can put the defence to their proof. Alternatively, if the crown says a number of bad things about the accused in aggravation of the offence and the defence doesn't accept that, then the crown must prove the allegations. Most of the time there's discussion between crown and defence as to the facts and the aggravating and mitigating circumstances and the process carries on.

• 1620

When you introduce a victim impact statement and in that statement are a number of allegations that had nothing to do with the offence charged—historical or unrelated allegations of offences or assaults or what have you—you introduce a problem. If the defence doesn't accept that, what's to be done? Sometimes the crown, rightly I would submit, strikes out those portions that are really irrelevant to that aspect of the sentencing. The accused has been convicted of a particular offence and is entitled to be judged on that basis and punished on that basis. One of the other factors the courts will look at is a previous criminal record and that sort of thing. The accused may not have had to face the allegations concerning these other matters that are mentioned in the victim impact statement.

Similarly the sentencing stage probably isn't the best place to start up another process about how much of the victim impact statement is true or not true. For example, there might be lengthy descriptions of emotional harm or damage or that sort of thing from the victim's perspective. Now that's from the victim's perspective. The accused is not required to accept that. In most cases I suspect they do, and I suspect defence counsel has a discussion with the crown and the court and that statement is received as the perspective from the victim.

Now let's say we have one of those situations that I discussed this morning, a credibility contest where the whole thing is about who to believe. One side says something did happen; the other side says it didn't. We have a victim impact statement that's introduced that was written at some point during the process. What if that statement is different from the statement originally given to the police and is different from what the complainant or the victim may have said in testimony? We now have a serious problem. We now have three versions. Many accused will say, well, look, that is further evidence of the fact that I'm innocent, that the other person is not telling the truth. So defence counsel rightly seeks the opportunity to cross-examine on this third version that's given.

There may be explanations about why we have three different versions of an event; there may not be. In any event, that's for the court to determine.

So where victims or complainants are cross-examined on their victim impact statement or where the defence seeks to use it for some purpose aside from a declaration to the court of what's occurred to the victim, there is a legal purpose. The accused has certain rights. This victim impact statement will also follow along. We mustn't forget that a particular accused may be facing a very lengthy period of time in jail, and with that prospect in mind may be telling all that he's not responsible—usually it's a he—for the offence. So they're entitled under our law to raise appropriate defences.

That statement, the victim impact statement, will go to parole services. If it has a number of allegations in it that haven't been sorted out, my experience is that the parole service will simply accept those at face value, as the parole service often does with the statements to the police. So it's important, from the accused's perspective, to get matters straightened out at a very early point if there is material or information in that statement that is inaccurate or alleges offences that weren't proved or weren't charged or weren't part of the process.

I think education is required on both sides. I've heard it said that the defence doesn't understand the victim's perspective, but those who seek to help victims have to educate them to what the purpose of that statement is. People have to understand the process. We're in a very serious process, because upon conviction there are very serious consequences to an accused and very lengthy periods of time in jail. It can destroy families. The offender has family and all of the things that victims too have to worry about.

• 1625

When we're in an adversarial process, there are sides, and each side plays a role. The court ultimately determines the result and the outcome. We must not, in my submission, take the position that something is wrong when one side plays its role and seeks to examine information that is put into court in a public way. I think it's helpful if we understand the process and what's going on.

The Vice-Chairman (Mr. John Maloney): Thank you, Marvin.

Michèle Roy.

[Translation]

Ms. Michèle Roy: I am going to add a number of elements to what the gentleman just said that can explain why the victim impact statements are not always filled out, are rarely used or bear little weight. The women we work with are often afraid of what will be done with their statements. They are afraid that the statements they make will come back to haunt them.

The gentleman said that there are two or three versions of the same incident. Based on my experience, in the case of rape, for example, the alleged offender's version is very rarely the same as the victim's. They very rarely agree on the facts and the repercussions of the assault.

We are not saying that the victims were not aware of how the statement would be used. They were not informed. In some cases, it may be linked to literacy or problems with respect to writing or producing certain documents. Victims are not necessarily very cultured people, who find it easy to fill out documents, etc.

Many women have told us: "The requirement to fill out this document victimizes me all over again. I am under the impression that I have to beg for compassion and understanding from the justice system. I have to include all of the details and tell the system what has happened to me, how I suffered and what impact the assault had on me."

As part of the complaint process, women try to regain control over their lives, to put themselves in a situation that they want to live in and where they can progress in life. For some of them, lodging a complaint puts them right back in the situation of a victim.

[English]

The Vice-Chairman (Mr. John Maloney): Thank you, Michèle.

Peter Mancini, did you have a comment?

Mr. Peter Mancini: Thank you, Mr. Chairman. I won't belabour the issue. The point I was going to make has been made by previous speakers, so in the interests of time I'll let you move on.

The Vice-Chairman (Mr. John Maloney): Thank you, Peter.

Paul, did you have a subsequent comment?

Mr. Paul DeVillers: Judge Main's suggestion was that the victim impact statement be used strictly as a sentencing tool, and I think that's the Nova Scotian experience. He says this way it would encourage better use of the statements, and it would give victims the confidence that their statements would not be turned around on them later on if disclosure was made only after conviction.

The Vice-Chairman (Mr. John Maloney): Thank you.

Joanne.

Ms. Joanne Marriott-Thorne: Unless I've missed something, the statement is referred to in the code for the purpose of sentencing. We've really tried to stick to that.

Prior to Bill C-41, we had been able to submit them to the court because we're not a crown victim services. We submitted them to the court in a sealed envelope, and everyone agreed that they would not be considered to be filed until there was a determination of guilt. At that point in time, the envelope would be unsealed and we would provide sufficient copies for them to be distributed to the prosecution, the defence, and the judge at the same time.

I think this gives another reason why we feel so strongly that there is a need for a victims' office at the national level. A victims' lens was not brought to changing the provisions, the wording, of Bill C-41 in relation to victim impact statements. When the wording was changed after that, the victim impact statements were disclosed immediately to prosecution and defence. They weren't allowed to be kept in a sealed envelope.

• 1630

There can be some discussion as to whether or not the process was appropriate in the first place, but in any case it worked in Nova Scotia and it worked very well. Attention to the changing of the wording in the code brought attention to that process, and the process changed to the detriment of victims of crime in Nova Scotia. Again, that's one of the reasons why I think there always has to be a victims' lens brought to any kind of legislation or policies that are happening at the national level.

The Vice-Chairman (Mr. John Maloney): Good comment. Thank you.

Chuck Cadman, perhaps the final word.

Mr. Chuck Cadman: Thank you, Mr. Chair.

Just a quick comment on the business of the multiple victim impact statements. All I can tell you right now is that if I were to write a victim impact statement today it would be an awful lot different from the one I wrote three weeks after the murder five and a half years ago. As long as it sticks to certain guidelines and the content deals with the impact—and I agree it shouldn't have anything to do with what you think the sentence should be or whether they should be released on parole; that's irrelevant—as long as the victim impact statement stays within the guidelines of dealing with the impact on me.... I think I'm the best judge as to who will decide what my emotional state is and how I feel about it.

On another issue, the method of delivery of the impact statement varies all over the place. It's right across the board. In some places it's read in by the crown. Other times the judge will decide just to read it and come back. Sometimes it's given orally. I feel that is a decision that should be left with the victim. The victim should make the final decision as to how to deliver that statement.

I think there's a twofold reason there. Number one, if the victim is able to deal with the offender, to state what the impact of the offence has been on them, it serves as part of the healing process for the victim to be able to deal with that part of it, to look somebody right in the eye and say, this is what you've done to my life. The other part is that you would hope that you would kindle some kind of remorse or some kind of desire to rehabilitate in the offender. I think that's crucial. I think the victim has to have the final call as to how that statement is delivered.

The Vice-Chairman (Mr. John Maloney): Rosealee Turcotte, it's been brought to my attention that you would like a word.

Ms. Rosealee Turcotte: In my experience, I've found that most victims do want to provide a victim impact statement, but there has been concern expressed about providing this information to the offender.

In my own case, I spent several years drafting and redrafting my impact statement, and I'm quite convinced that the judge never read it. I don't know if there is a requirement or a right that a victim can request that this be read into the court transcript, but if there isn't then I think there should be.

I was also subjected to quite a diatribe on the part of the defence as to why the judge shouldn't consider the emotional harm I had suffered prior to sentencing. I feel that I stuck to only the emotional impact of the crime. If the defence has objections to specific information in a victim impact statement about events or whatever, that's fine, but I don't feel they should be permitted to negate the emotional impact the crime has had on a victim.

I also agree with Chuck that the delivery of the victim impact statement should be up to the victim. I've heard a lot of people say they wanted to do it orally or by whatever format, and I think that's caused a lot of problems.

That's about it.

The Vice-Chairman (Mr. John Maloney): Is there anyone else who wishes to make a comment before we move on?

Kathy.

Ms. Kathy Louis: May I just clarify something here. Although I indicated earlier that I'm not here representing the National Parole Board, I do want to inform you that the addresses of the victims are not made available to the offender. That is something we try to protect through privacy legislation. While there is an exchange of correspondence between the victim and the board, we're very vigilant in trying to protect that kind of information. We're required in law to provide required information, and there is the gist that is shared with the offender for information.

The Vice-Chairman (Mr. John Maloney): Thank you, Kathy. I appreciate those comments.

Go ahead.

Mr. Bob Whitman: I want to go back to an issue that we sort of skirted over or didn't deal with at all, and that's the issue of a ban of publication. I think sometimes there are situations where there is a ban put in place without asking the victim whether or not she wants that ban put in place. I've been in court sometimes when it's actually the defence counsel who asks for the ban on publication, and you have to wonder whether or not it's for the protection of the accused rather than the victim.

• 1635

Again, I think we talked earlier about whether it is one of those questions the judge should be asking about whether or not the victim has been asked whether or not she wants a ban on publication.

The Vice-Chairman (Mr. John Maloney): Thank you.

Susanne.

Ms. Susanne Dahlin: I would just like to support that and say that I think it was done historically especially around sexual assault victims. I know a number of women and women's organizations now would prefer not to have their identities kept.... They want to go out and say we had no role to play in this and therefore we're willing to go public with it. But I think it's an individual issue, and I think the victim should have a choice in that and should be asked about it.

The Vice-Chairman (Mr. John Maloney): Joanne again.

Ms. Joanne Marriott-Thorne: It's the same issue we faced in relation to publication bans. One media source, for instance, radio, would publish the name of the accused and another media source, for instance, a newspaper in a very small community, would not give the name of the accused but would publish the relationship between the accused and the victim, thereby identifying the victims. We've had some cases of very, very serious trauma because of that, and there doesn't seem to be any way around that. Neither media source has in fact violated the ban.

I think we have to look a little bit more closely at what more we can be doing in relation to publication bans.

The Vice-Chairman (Mr. John Maloney): Rick Prashaw.

Mr. Rick Prashaw: I'll leave with the committee and other folks here three cases in Genesee county that are examples to me at least of one path we can look at, at least to see what would work here. These are three serious offences. One's a manslaughter, one's an assault, and one's a robbery. There are certain things leaping from the page at me as I go through it, and I know some of the individuals working in Genesee county: 220 case contacts covering a 14-month period with the victim; 20 home visits during the 14 months of victim assistance; victim impact statements ranging from 96 to 226 pages.

I have lots of questions about what they do, but this is a county that appears to be making this a priority, taking it quite seriously. Partnerships develop between community volunteers, who are trained properly, and professionals in the system. So it's not all on the professional side.

On community impact statements, we want to send messages of denunciation and deterrence. Sometimes it's the messenger that we forget about that is as important as the message. So some of these so-called alternative approaches are learning that a stranger who is a judge or a police officer cannot hit home as can a grandmother or somebody who is pulled into the process who personally talks about how offensive is what has happened in their life.

They now have whole community impact statements, where there's a program trained for people. It doesn't mean just anybody can come in and offer their two cents, but there is a place where, for example, in this case, 16 community impacts.... They reached the accused far more than some of the other people. People started to put a real face on the extensive impact beyond simply the importance of the primary victim; they are the secondary victim and the community was harmed.

I'll just file that with the committee. It's an opportunity to look at this approach.

The Vice-Chairman (Mr. John Maloney): Thank you.

One final word. Go ahead, Susanne.

Ms. Susanne Dahlin: I have to deliver this message on behalf of my colleague from Prince Edward Island who wasn't able to be here today. I know a concern they have had in their community is to be sensitive to the needs of victims whose names may be printed in the paper as having been a victim of a homosexual attack or something like that and they had not come out in the community in an open kind of way. There didn't seem to be any sensitivity around that kind of issue.They were again revictimized by that publication because of their victimization.I think what we were looking at is to look at all those issues in terms of a publication ban.

The Vice-Chairman (Mr. John Maloney): Thank you.

• 1640

I think we've canvassed that issue rather extensively. Perhaps we could move on now to another area that we're interested in, which is restitution.

The Criminal Code allows for restitution for loss of property and pecuniary damages, including lost income and other expenses. The question is whether it's effective, or are there other areas that victims should be compensated for? If restitution is not paid within a stipulated period of time, a civil order can issue. Are they effective? Do people resort to these, etc.?

These are some of the questions we'd like some comments on.

Does anyone wish to comment?

Mr. MacKay.

Mr. Peter MacKay: I guess maybe just in the interests of getting the conversation going, I generally don't think the current system we have set up helps victims get compensated.

As a crown attorney you can ask for it and the court can order it, but there isn't really an effective mechanism for enforcement. The same can be said of the system we have currently for maintenance enforcement. I think the state or the justice system in this case can do more to help victims recover or be compensated.

Obviously that's not the case in situations involving violence, but I think there's also a very important symbolic aspect to this. That is that the victim, in the case of somebody who's been physically assaulted, their clothing has been ripped or their jewellery has been damaged or stolen...I think the state has to do more to ensure that there is some financial compensation. Perhaps I would even go so far as to say that the justice system should pay the tab and then the justice system should go and get compensated.

I'd be interested to hear people's response to that.

The Vice-Chairman (Mr. John Maloney): How far would you carry that? Say I had a $10,000 Rolex watch. Would you expect the state to reimburse me for that watch and then try to collect it against the offender?

Mr. Peter MacKay: Obviously you're getting into a situation where if it happened in every single case.... I think to some extent there could be more effort made. The same could be said of a stolen vehicle, if it wasn't insured, or a house that was burned down in an arson case. I know there are plenty of extreme examples where it would virtually bankrupt our justice system if compensation was made by the justice system. But I think we can do more, and I think we could perhaps provide access to legal counsel for small claims court or improvements in that way.

The Vice-Chairman (Mr. John Maloney): Any other comments?

Joanne.

Ms. Joanne Marriott-Thorne: Only because no one else is speaking up.... One of the responsibilities I have is for criminal injuries compensation in Nova Scotia. I know a great number of victims have a huge concern over the fact that the public purse pays for the costs of personal injuries they have suffered. We haven't really put in place good provisions yet to get that money back from the offender. We're working on that, but it seems to be very complicated.

I think victims of crime—and I think most of the people around this table have been focusing on victims of violent crime, which is what compensation focuses on. But in terms of the numbers of victims we deal with, this is a primary concern for a very wide range of victims of crime. In terms of satisfaction with the criminal justice system, the fact that restitution most commonly is not ordered and then most commonly is not paid when it is ordered is a matter of huge frustration for the majority of victims.

The Vice-Chairman (Mr. John Maloney): Peter Mancini.

Mr. Peter Mancini: Thank you, Mr. Chairman. I have just a couple of points on this. First of all, my experience in the courtroom, which has been fairly extensive, admittedly from a legal aid perspective, has been that in many cases the order for restitution can be made, but the reality is that there are very limited funds available to the offender to pay restitution.

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I think anybody who has sat through certainly provincial courts will recognize that a good percentage of the offenders who come before the courts are, to some degree, impoverished. There are, however, mechanisms, and I think you gave a good example. What happens if it's your Rolex watch? What happens there? I don't have my code with me—I know, Peter MacKay, you have yours.

I had a case very similar to that, where the offender, whom I represented, was a cocaine addict. He had broken into his best friend's home and stolen jewellery. There was a provision in the code, and it escapes me at the moment, whereby restitution—there was a judgment registered against the offender knowing that realistically there was no money now, but in the future there might be, and indeed at some point down the road that person did come into some property by way of...I forget whether it was an inheritance or what. The judgment was attached and thereby restitution was made available.

I think part of the problem is that there's a certain financial reality that many offenders lack the wherewithal to make legitimate restitution to the victim. There is that section, I think.

Mr. Peter MacKay: It's 738 to 741. It's like a civil judgment—

Mr. Peter Mancini: That's right.

Mr. Peter MacKay: —to be placed at the registry. It could lead to future litigation if it wasn't satisfied.

Mr. Peter Mancini: So in terms of going through small claims.... There is a provision already in the code to make that judgment available to the offender, to collect at a future date in the event that there's no money.

The Vice-Chairman (Mr. John Maloney): Is it important to victims that restitution is made as part of the healing process or an effort towards restitution is being made? How important is it from a victim's perspective that an effort is made?

Priscilla.

Mrs. Priscilla de Villiers: I think there are a number of issues here. One of the problems with the current mood in this country about criminal justice is that there's a cynicism that is very widespread and very deep-rooted, I think, about the veracity of the whole process. I believe the restitution, in certain cases and where it's applicable and appropriate, should be paid. I think it satisfies this idea of fairness and of redress, but it is totally counterproductive if that order is made and there's absolutely no effort to enforce it. In fact, it has the reverse effect.

I believe the section that's been brought up now sounds to me like a battered housewife.

It sounds extremely practical; if and when there are resources that could be attached, that would be excellent. What it does is it then satisfies this idea that the offender is not going to come out of this very often economically ahead of the victim.

Victims, I must say—and this is not something we've studied in this country and I think it's something we really need to look at—suffer enormous economic hardship through crime. It's enormous, and it's not just the obvious things. When there is a possibility of some sort of restitution, even if it doesn't begin to approximate the actual value, I believe it has a very good deterrent effect. I think it looks as though it appears to be balancing some of these inequities.

I also think that at the moment our justice system abrogates its responsibility in this regard. If such an order is made and there's no effort to apply it, how can a victim begin to get that money? Usually they cannot afford any sort of legal assistance.

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Second, there is that inertia that follows victimization, which really makes it something that is just too horrendous to even contemplate—to go back to court again—and most people don't want to do that, and in many cases they don't want to face the offender again.

I believe the civil responsibility should...there should be this cross-over. I believe the order should be made according to the Criminal Code. I think in most cases where there is any way of redressing financial loss, that should definitely be part of the sentencing process. In fact it should be up to the courts and the system to see that that money is paid. We have enough trouble, heaven knows, getting support payments for children. There is no way a civilian, one person, a citizen, could begin to go after money unless there is a real will to pay it.

I think this is actually a very valuable area. It's not something I know anything about, but I would like you very much to look at it.

The Vice-Chairman (Mr. John Maloney): Thank you, Priscilla.

Chuck Cadman.

Mr. Chuck Cadman: Thank you, Mr. Chair. In my experience, this is one area where I think diversion programs tend to be far ahead of the courts in restitution areas. I know the program I work with in Maple Ridge, B.C., with young offenders—by and large, a huge majority of the offences are property related, usually in the hundreds or low thousands of dollars. Virtually every offence, every diversion, includes a restitution component. It's part of the contract these kids sign.

The community is involved to the extent that there are businesses that will hire the kids on a Saturday morning to sweep the floors in an auto body shop, to do something to get the money and to make restitution to their victims. I think diversion programs for young offenders are way ahead of the courts on some of these issues. It's something that should be looked at.

The Vice-Chairman (Mr. John Maloney): Peter MacKay.

Mr. Peter MacKay: Thank you, Mr. Chairman. Just to follow up, and I don't want to dwell on this, but I didn't really articulate my thought about the restitution in cases like the example you gave.

I prosecuted a case once where four young offenders had set fire to a railway bridge, and the cost was over $100,000 to the province. In that instance, the judge made some very innovative restitution orders where they were required to pay a portion of that. I don't think the symbolism was lost on them, because, much like diversionary or alternative measures situations, they were forced to get summer jobs or to save any birthday money or money that was received at Christmas and physically turn that over to the victim. In this case it was the province. I think that was very important in stressing the fact that they had done something wrong and there was compensation and restitution required to make good for that deed.

So I think that restitution is very important in the healing process. I know that's sort of an abstract one from the victim's perspective, but even if it's a portion of compensation, I think it's important.

The Vice-Chairman (Mr. John Maloney): Thank you.

Peter Quinn.

Mr. Peter Quinn: Just following up on some comments that were made earlier about having some sort of state-based legal advice for victims, restitution is a perfect example where that would be so appropriate.

You were mentioning, Peter, that there is provision for compensation orders to be turned in, but if it's in provincial court then it has to be filed with the Court of Queen's Bench. Then there has to be a garnisheeing of wages, and it becomes a very complex matter for most of the population. There's really no one there to explain those steps for them, whether they are steps and options they would like.

It goes back to what you were saying about being a fairly hollow sort of statement for people, and sometimes it can be worse. If this person owes you $2,000, you know you can't get blood out of a stone. So it becomes kind of meaningless with the sentencing, if that's going to happen. But if there was provision where they could get advice about how to go about trying to file those claims, that would be of great assistance to people.

The Vice-Chairman (Mr. John Maloney): Should we be utilizing moneys that come from proceeds of crime? Should we be opening this up to the pot, so to speak? It might cover the situation Peter MacKay was mentioning, when there are insufficient funds from the offender. There's just no way he or she is going to be able to pay. What are your comments on that?

Mr. Peter Quinn: I think if you opened up to that level of financial compensation for property crime it would be a huge, onerous task for the government to provide compensation for property crime for everybody. I think if there were some simple way that simple legalities could be explained to people so they could make those decisions themselves, if that's an option they choose to take, I think that would be a better option.

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The Vice-Chairman (Mr. John Maloney): Go ahead, Steve.

Mr. Steve Sullivan: The point behind restitution, though, kind of picks up on the points we've talked about in terms of restorative justice. It helps the offender take responsibility. So if you have it just come from a pot of proceeds of crime, I think you're losing the essence of what restitution orders are all about.

Just while I have a last chance to speak, if anyone has picked up this report, it will be available in French tomorrow.

The Vice-Chairman (Mr. John Maloney): Thank you.

Karen.

Ms. Karen O'Hara: I would like to address the last question, number 7, should the provinces and territories have greater access to moneys resulting from proceeds of crime initiatives to more fully fund victims' services programs. Yes. Community agencies that are delivering services to victims spend probably a quarter of their time fundraising, through bake sales and other innovative ideas, and we're pretty tired of it.

The Vice-Chairman (Mr. John Maloney): Which leads us to some other questions about victim fine surcharges, etc. Should we be perhaps increasing those or opening that up? Not “we”, but the provinces are basically involved there. Are there any comments on that?

Susanne.

Ms. Susanne Dahlin: Actually there are two victim fine surcharges. I think we would like to see the federal victim fine surcharge as a minimum amount that was mandatory, or a presumptive amount. We have the lowest collection rate in B.C. We get $100,000 from our federal victim fine surcharge, which isn't very much at all. So we would like to see the feds do something about that.

The Vice-Chairman (Mr. John Maloney): Make it mandatory?

Ms. Susanne Dahlin: Yes.

The Vice-Chairman (Mr. John Maloney): Irvin, go ahead.

Mr. Irvin Waller: I think this is one area where we can learn something very positive from the United States. They've basically been using victim fine surcharges on corporate offenders as a way of funding a whole range of victim activities. It seems to me that's something we should be looking at. So it's not just proceeds of crime, it's not just fine surcharge for the ordinary offender, but increasing the possibility of giving very large fines to corporate economic crime, people who basically have the means to pay.

As people are probably aware, the U.S. Office for Victims of Crime had just one fine of $400 million that was paid into their account, which was the Daiwa Bank. I'm sure these people are offending just as much here as they are in the United States. It seems to me that's something the legal experts might want to look at.

The Vice-Chairman (Mr. John Maloney): I'm canvassing the room on this issue.

Go ahead, Colette, and then Ms. Cohen.

Mr. Colette Mandin-Kossowan: What we find and what I have found as an advocate in court with victims is that our federal fine surcharge has been really inconsistently implemented and is often waived. That means the funding to victims' funds is being inconsistently applied.

I think the benefits of fine surcharge, where they're spent and how the victims' programs they fund are run, should be taught to judges so that they could see where that user fee is being implemented; they see the benefits and are more likely to implement it.

In Alberta as well we have a provincial statute surcharge, which was just recently implemented last summer with our Victims of Crime Act, which will impose a 15% surcharge on all provincial statutes. So it still remains to be seen how much money will come in from that, but that could be something implemented in other provinces as well.

The Vice-Chairman (Mr. John Maloney): Thank you.

Any further comments? Joanne, go ahead.

Ms. Joanne Marriott-Thorne: Just for information, we've looked at this in Nova Scotia. We have a provincial surcharge as well as the federal surcharge, and between 1992-93 and this last fiscal year, our surcharge has decreased by 22%. I think that is the case in most provinces; maybe not all but in most.

Again, it's something that we think needs some immediate attention in terms of changing the code provisions and also having our federal counterparts take a look at that and try to assist us in getting some ideas as to why it's going down and what we could do about it.

The Vice-Chairman (Mr. John Maloney): Thank you, Joanne.

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We've reached our adjournment time. It seems that we've also reached perhaps our ability to discuss these matters. It's been a long day. We very much appreciate your comments.

I have a few housekeeping matters to address. If you wish, you can leave your material on your desk. This room will be secure. As soon as we leave, it will be locked up until tomorrow morning.

My other comment is that there will be lunch served tomorrow. We will go till 12 or 12.30 tomorrow morning, but lunch will be served, and we can perhaps discuss informally after that a continuation of our meetings.

As Shaughnessy has mentioned, there is a wine and cheese reception hosted by the Minister of Justice in room 237-C, the room right across the hall, where the astronauts were.

There being no further comments or questions, I shall adjourn the meeting until 9 o'clock tomorrow morning. Thank you very much for being here.