2nd Session, 41st Parliament,
Volume 149, Issue 134
Wednesday, April 22, 2015
The Honourable Leo Housakos, Speaker pro tempore
Victims Bill of Rights Bill
Third Reading—Motion in Amendment
On the Order:
Resuming debate on the motion of the Honourable Senator Boisvenu, seconded by the Honourable Senator Runciman, for the third reading of Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts;
And on the motion in amendment of the Honourable Senator Joyal, P.C., seconded by the Honourable Senator Ringuette, that Bill C-32 be not now read a third time, but that it be amended
(a) in clause 2, on page 8,
(i) by adding after line 7 the following:
“(2.1) The authority referred in subsection (2) must have power
(a) to compel the federal department, agency or body to produce information and documents relevant to a complaint; and
(b) to make recommendations and orders to remedy specific or systemic infringements or denials of rights under this Act.”, and
(ii) by deleting lines 31 to 36; and
(b) in clause 24,
(i) on page 22, by deleting lines 38 and 39,
(ii) on page 23, by deleting, lines 1 to 7.
Hon. Mobina S. B. Jaffer: Honourable senators, I rise to speak on the amendment to the Victims Bill of Rights. As I said yesterday and want to say again, I wish to acknowledge the work of one of our colleague’s on this issue. He has, for many years, worked on this issue of victims’ rights, and my comments are in no way meant to take away from his work on this issue. I want to acknowledge Senator Boisvenu’s work for victims’ rights.
When there was first talk about the Victims Bill of Rights, I was very excited because I felt that it was time that we looked at the challenges that victims face in the criminal system.
Having studied the bill, I am truthfully very disappointed because we have raised expectations. We have raised expectations with Canadians who are vulnerable, who are victims of crime, that they will, at the end of a criminal trial, have some kind of relief, that they will have some kind of acknowledgment of their pain.
After having studied the bill and given a lot of thought to this, I have come to the conclusion that, once again, we will raise expectations without resources.
I would like to look at a number of things — the length of trials that will happen as a result of this legislation and the issue of restitution.
The charter speaks about rights, and it sets it out well. It talks about the right to information about the criminal justice system, the right to information about the status of the investigation, the right to have their security and privacy considered, the right to protection from intimidation and retaliation, the right to request testimonial aids, the right to convey their views about decisions, the right to present a victim impact statement, the right to have the courts consider in all cases making a restitution order, and it goes on.
The charter creates all these rights, but what about the obligations? Because, as we know, the federal government passes legislation, but the operation of the court system is carried out by the provincial governments. We are creating all these rights. We are giving no resources to the provincial governments to carry out or to make sure these rights are carried out.
I can’t speak for any other province, but I can tell you that in my province the courts are absolutely chockablock with all this legislation that is coming down from Ottawa. The chief judges are really at their wits’ end as to how they can make the courts operate with the resources they have.
Now we have created all these rights. All these rights will mean that there will be an increase in the length of time before people’s cases are heard.
We had many people testify, and I will read in the testimony of Michael Spratt, who often appears in front of our Committee on Legal Affairs. Michael Spratt is a criminal defence counsel and a member of the Criminal Lawyers’ Association, and this is what he had to say:
I’m here representing the Criminal Lawyers’ Association. We are a non-profit organization comprising over a thousand criminal defence lawyers. We’ve been granted standing to participate in many significant criminal appellate cases and other judicial proceedings, and we are routinely asked to provide input by various parliamentary committees, such as this one . . . .
We support legislation that’s necessary, modest, fair, constitutional and supported by the evidence. Let me just say at the outset that victims aren’t an abstract concept to criminal defence lawyers. We know that victims are real, and indeed we see their struggles in our criminal justice system first hand. For this reason, the CLA does not take issue with many aspects of this bill. Indeed, many of the rights set out in this bill simply codify what are already practices that we see in our courts, and there can be no dispute that that is a good thing. That said, there are aspects of this bill that cause us great concern, and it’s for those reasons that the CLA is unable to support what could have been — and can be, I suppose — a very useful piece of legislation.
It’s clear from prior testimony, and indeed from my interactions with victims, that one of the main concerns that victims have is the glacial pace of the criminal justice system. One of the most conspicuous features of this bill is the increased participation for witnesses and complainants by being able to personally bring a variety of applications in the course of the criminal proceeding. These applications currently are generally brought by the Crown, when reasonable.
The concern I have about adding additional procedural steps to what we already know is a strained judicial system is that it will simply delay matters — trials and pleas — by days, weeks or months. Delay is already real; it’s already a problem. Just yesterday, a Brampton Superior Court judge blasted the ridiculous delays in that jurisdiction. Trials, we know, can take years to complete, and we know that puts an extraordinary strain on witnesses, victims, complainants and, indeed, on accused people who live under the shadow of the criminal proceeding.
The reason for this is not because accused people have too many rights or that trials are somehow too fair. Courts and litigants struggle to do the best they can with the constraints of the justice system as it currently stands. What we suggest is not more laws but more funding, more funding for courts, for litigants and for victims. I suggest that would benefit everybody, and the legislative downloading of costs doesn’t help anyone.
The second and most important point I would like to make today is about clause 17 of this bill. I have no doubt that everyone here believes in fair trials, and yet this provision will result in unfairness. This provision, of course, adds a new section to the Criminal Code which allows witnesses to testify anonymously, and not just anonymously. Importantly, it allows for the non-disclosure of information that could lead to the identification of that witness. This is another application that a witness can bring. This is an application that can be brought at any time during the proceeding . . .
The characterization of this section by the government has been a little bit misleading.
Honourable senators, Mr. Spratt goes on to speak about how the trials will get delayed if all these rights are put in place without the funding.
Nana Yanful, a representative from the Canadian Council of Criminal Defence Lawyers, also stated this:
First, I should preface my comments by saying that the CCCDL acknowledges that an effective criminal justice system requires thoughtful consideration of the interests of complainants and accused persons. Victim services programs across the country require more funding for services, not only at the front end, but at the back end for counselling, education, support and consultation.
We acknowledge that the criminal justice system can be a difficult and intimidating space for complainants, witnesses and victims, and we believe it assists the defence — it assists us — to have well-informed victims.
Senator Baker, who is the vice-chair of our committee, asked this question:
I get the picture that the three of you are . . . concerned about . . . trial delay . . . lengthening out the provisions here for witnesses to make applications to the court.
The reason why that is so important is there is an increasing number, in every province in this country today, of the application of Askov, the application of section 11(b) of the Charter, trial within a reasonable period of time. You get people who are alleged to have committed the worst of crimes. The RCMP spends all their time, as Chief White would tell you, researching crimes, to have them appear before a court, as Ms. Walker pointed out from the very beginning, and have a trial take two or three years, and then all charges are just thrown out. The accused is then free — acquitted of everything — because the trial took too long. It’s established in law in Canada — and, Mr. Spratt, I wonder if you could verify this — that, from the point of charge to the point of the first appearance to the point of the trial beginning, there are time periods laid down by the Supreme Court of Canada, and if you violate those in any serious manner — and it’s the fault of applications, not the fault of the accused — if you don’t meet these deadlines, one could end up being acquitted of everything. Is that not correct? There are established guidelines, and this bill will lengthen now the period of time. Is that correct?
Mr. Spratt responded:
That is right. It is not the fact that the charges could be stayed at the end of the day, but the fact that witnesses’ memories can diminish over time and complainants have these matters hanging over their heads. Or, if the accused is found not guilty, he might be living under restrictive bail conditions during that period of time. Delay is not good for anyone, and it’s not sought out by any party, but it’s a reality.
Honourable senators, what we are doing here is passing a bill that will only cause more issues for the victim.
The second issue I would like us to look at is restitution. Senator Baker asked many questions on restitution. I could go on and on reading to you the testimony from various witnesses, but what I understood is that restitution will only be where there is a financial damage, for example, as Senator Batters said yesterday, a window is broken or there is an issue of transportation.
The judge will not have the ability to look at whether that person can pay. So at the end of the trial of the person who is convicted, the judge can order restitution. This does not mean that the victim walks out with money. The victim has to register that restitution claim in a civil court. Those of us who have done those cases know that you would not go if you had a few thousand dollars to try to get restitution in a civil case because not only would you have to register it but also you would have to hire a collector to collect the money. And at the end of the day, there may not be any money. The victim would be out-of-pocket.
Honourable senators, we talk about protecting the rights of victims and about creating restitution without proper funding or properly thinking about how the victim will collect this money during a week when we are celebrating victims’ rights. Do not give them false hope. That should not be our role.