Government Response to the 2010-2011 Annual Report of the Office of the Federal Ombudsman for Victims of Crime

Foreword

I am please to release the Government's Response to the 2010-11 Annual Report Office of the Federal Ombudsman for Victims of Crime.

As Minister of Justice, I share the commitment expressed by the Ombudsman. Since this Government was first elected in 2006, it has made responding to the needs of victims of crime a priority. This commitment has been proven time and again through the concrete measures that this Government has taken to ensure that victims of crime have an effective voice in the criminal justice system. I am confident that the Ombudsman will see that the Government has made progress on a number of important victim issues.

I look forward to continuing the productive working relationship between the Federal Ombudsman for Victims of Crime and the Government of Canada in addressing victim issues and improving the lives of all Canadians.

Introduction

The Federal Victims Strategy

The Government is committed to responding to the needs of victims of crime. The Federal Victims Strategy (Strategy) is a Government initiative led by the Department of Justice and includes the Public Prosecution Service of Canada, the Department of Public Safety Canada and its agencies, the Correctional Service of Canada and the Parole Board of Canada.

The objective of the Strategy is to give victims a more effective voice in the criminal justice and corrections systems. In 2011, the Strategy was renewed for $26M over two years. This includes funds to continue the Office of the Federal Ombudsman for Victims of Crime as well as various programs at the Department of Justice, the Parole Board, the Public Prosecution Service of Canada and at the Correctional Service of Canada. The Government of Canada supports victims of crime and is working with partners to ensure that victims have a more effective voice in the criminal justice and corrections systems.

Responses to recommendations in the report

• Elimination of the "Faint-Hope Clause"

  Government Response

  The "faint-hope" clause in section 745.6 of the Criminal Code allows convicted murderers who have served 15 years in custody to apply for a reduction in the parole ineligibility period imposed upon them at the time of sentencing. For 1^st degree murder, the parole ineligibility period is a mandatory 25 years. For 2^nd degree murder, the parole ineligibility period ranges from a mandatory minimum of 10 years up to a maximum of 25 years.

  Former Bill S-6, the Serious Time for the Most Serious Crime Act received Royal Assent on March 23, 2011, and came into force on December 2, 2011. The explicit goal of the Government was to reduce the emotional suffering often experienced by the families and loved ones of victims when convicted murderers make an application under section 745.6 of the Criminal Code. To this end, the Criminal Code was amended to eliminate entirely the right of those who commit murder after December 2, 2011, to make an application under section 745.6 of the Criminal Code.

  The amendments contained in former Bill S-6 also changed the application process for those offenders who committed murder prior to December 2, 2011, and who therefore have a continuing right to make an application under section 745.6 of the Criminal Code. First, the threshold test for an application to proceed was raised from a "reasonable prospect" of success to a "substantial likelihood" of success. Second, the minimum waiting period for rejected or abandoned applications was raised from two to five years. Third, a 90-day application period was created during which those who become eligible to apply (or to re-apply) must make an application under section 745.6 of the Criminal Code. Failure to apply within the 90-day window bars an application for a further five years.

  The five-year minimum waiting period for rejected or abandoned applications was part of former Bill S-6 as introduced and was not changed by the Senate during the parliamentary process. However, a new provision in subsection 745.6(2.8) was adopted by the House of Commons Standing Committee on Justice and Human Rights on November 23, 2010, to the effect that the Commissioner of the Correctional Service must notify in writing "a parent, child, spouse or common-law partner" of the victim if the offender does not make an application under section 745.6 of the Criminal Code within the time period allowed by the Bill. This amendment received concurrence from the House of Commons on December 14, 2010, and from the Senate on February 2, 2011.

  The passage of Bill S-6 was a step in the right direction to give victims a voice in our justice system, and to ensure that their interests are fully considered during all steps of the judicial process.

• Protection of the Children of Accused Serious Offenders

  Government Response

  As noted in the Ombudsman Annual Report, former Bill C-464, An Act to amend the Criminal Code (justification for detention in custody), amended the Criminal Code to remind courts to consider the protection of children when determining whether pre-trial detention is necessary. At the House of Commons Standing Committee on Justice and Human Rights, the Government introduced an amendment which proposed changing he wording of the Private Member's Bill from "or minor children of the accused" to "any person under the age of 18 years". This motion sought to make the amendment applicable to all children, not just children of the accused and to make the terminology more consistent with other Criminal Code provisions. The Bill, as amended, received Royal on December 15, 2010. Section 515 (10)(b) of the Criminal Code now reads that pre-trial detention can be justified "where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to the circumstances including any substantial likelihood that the accursed will, if released from custody, commit a criminal offence or interfere with the administration of justice".

• Ending Sentence Discounts for Multiple Murders

  Government Response

  This recommendation supports the federal Government's explicit goals for former Bill C-48, the Protecting Canadians by Ending Sentence Discounts for Multiple Murderers Act, of ensuring that multiple murderers are held accountable for each life taken and of reducing the anxiety often experienced by the families and loved ones of victims when convicted murderers are granted a parole hearing. This recommendation also calls for giving victims the explicit right to the judge's reasons for deciding whether to impose consecutive periods of parole ineligibility on multiple murderers.

  The punishment for both 1^st and 2^nd degree murder is life imprisonment with the possibility of applying for parole after a period of parole ineligibility: 25 for 1^st degree murder and between 10 and 25 years for 2^nd degree murder. Consecutive life sentences for murder are not possible in Canada. Thus, multiple murderers receive a life sentence for each murder to be served concurrently with a single (merged) parole ineligibility period.

  Former Bill C-48 received Royal Assent on March 23, 2011, and came into force on December 2, 2011. The new Act amended the Criminal Code to authorize a sentencing judge to order that multiple murderers convicted of offences occurring after December 2, 2011, must serve the parole ineligibility period associated with each murder consecutively. The judge's decision will be made in light of the character of the offender, the nature and circumstances of the murder, and any recommendation in this regard that may have been made by the jury. If such an order is made, a multiple murderer would serve the parole ineligibility period for the first murder (that may range from 10 to 25 years) followed by a 25-year ineligibility period for each additional murder after the first that is included in the judge's order. In its final form the Act requires judges to state orally or in writing the reasons for making or for not making the order imposing consecutive periods of parole ineligibility as the case may be.

• Guidelines for Victim Statements

  Government Response

  The Parole Board of Canada recognized that clearer guidelines regarding the presentation of Victim Statements (whether in person or by recording) were required. The Board has therefore revised the Guidelines for Regional Communications Officers.

  The Board also revised the Fact Sheet provided to victims presenting statements at a hearing which is posted on its website. Additionally, a Checklist to assist victims in preparing Victim Statements has been developed and is also posted on the website.

• Federal Victim Surcharge

  Government Response

  On April 24, 2012, the government introduced Bill C–37 the Increasing Offenders' Accountability for Victims Act that will make convicted offenders more accountable to victims of crime by doubling the victim surcharge that offenders must pay and ensuring that the surcharge is automatically applied in all cases.

  As many provinces and territories depend on victim surcharge revenue from both Criminal Code offenses and provincial offences to fund their victim service programs, the Federal Victim Surcharge (FSV) is an important means of assuring services for victims. Making it mandatory in all cases without exception will ensure that all offenders who are able to pay the surcharge will do so. It will also increase potential revenue for provincial and territorial victim services and ensure that offenders are held accountable to victims.

  The surcharge amount is currently 15 percent of any fine imposed or $50 for a summary conviction offence and $100 for an indictable offence. Doubling the amount of the FVS, which has not been raised since 1999, would increase the amount of potential victim surcharge revenue for victim services.

  The change would also be consistent with the federal criminal law power and sentencing principles, which include providing reparations for harm done to victims or to the community and promoting a sense of responsibility in offenders and an acknowledgment of harm done to victims and the community.

  Bill C–37 is currently being considered by the House of Commons.

• Mandatory Reporting of Images of the Sexual Abuse of Children

  Government Response

  On December 8, 2011 former Bill C–22, an Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service came into force, along with the Internet Child Pornography Reporting Regulations (SOR/2011–292). The Act requires that those who provide Internet services to the public to report to a designated agency (the Canadian Center for Child Protection) the Internet addresses where child pornography may be available to the public (when such addresses are brought to their attention.) The Act also requires providers of Internet services to notify police and safeguard evidence if they believe that their Internet service is being or has been used to commit a child pornography offence. Failure to comply with the duties under the Act constitutes an offence punishable by summary conviction with a graduated penalty scheme. The Regulations provide the framework to implement the Act, including as it relates to the designated agency and the manner in which Internet service providers are to discharge their duties under the Act.

  This new Act moves this type of reporting out of the voluntary sphere and is expected to improve law enforcement's ability to detect child pornography offences, thereby helping to reduce the availability of online child pornography and facilitating the identification and rescue of child victims, as well as the identification of offenders for the purpose of investigation and prosecution. Importantly, nothing in the Act or the Regulations requires or authorizes a person to seek out child pornography (section 6 of the Act).

• Missing Persons Index

  Government Response

  A written reply to the Ombudsman's letter of February 16, 2011, was provided to her office on July 28, 2011.

  The Government of Canada continues to advance efforts to respond to missing persons in Canada. As part of Budget 2010, the Government invested $25M over five years to improve community safety and to ensure that the justice system and law-enforcement agencies can better respond to cases of missing and murdered Aboriginal women.

  Part of this funding was provided to the RCMP to establish a National Police Support Center for Missing Persons and Unidentified Remains (NCMPUR). The (NCMPUR), now in operations, will support law enforcement, medical examiners and chief coroners with missing persons and unidentified remains cases on a national level.

  To provide national leadership on missing persons' cases, the NCMPUR Will be responsible for managing a national Missing Children/persons and Unidentified Remains the Database aimed at enhancing analytical capacity and supporting investigations of missing persons an unidentified remains across Canada. It is also in the process of establishing a national public website, which is intended to raise public awareness regarding specific investigations and to receive tips on these investigations. It is anticipated that this website will be launched in 2012.

  Finally, a number of parliamentary committees have recommended the development of a Missing Persons Index and other related indices. These recommendations, amongst others, have been accepted in principle by the Government. Work is on–going to examine how to best respond to these recommendations, while taking into consideration legal, privacy, and financial implications.

• Measures to Protect Victims of White-Collar Crime

  Government Response

  Bill C–21, the Standing Up for Victims of White–Collar Crime Act, came into force on November 1, 2011. The legislation was intended to ensure that sentencing for fraud, and in particular large–scale fraud, reflects the serious nature of the crime. The legislation addresses the sentence that can be imposed on a person convicted of fraud and includes:

  • mandatory jail time of at least two years for fraud over $1M regardless of the number of victims involved;
  • additional statutory aggravating factors that can be applied to sentencing in fraud cases such as:
  • if the offense had a significant impact on the victim, given the victim's particular circumstances, including his/her age, health and financial situation;
  • if the offender concealed or destroyed records relating to the fraud or the disbursement of proceeds of the fraud;
  • if the offender failed to comply with the applicable licensing rules or professional standards; and,
  • the magnitude, complexity, and duration of the fraud and the degree of planning that went into it.
  • allowing the court to impose prohibition order to prevent the offender from having employment or working in a volunteer capacity that involves having authority over other people's money.

  Additional measures in the legislation improve the responsiveness of the justice system to meet the needs of victims of fraud through restitution and "Community Impact Statements." The Criminal Code provides that, in determining the sentence to be imposed on an offender, judges must consider Victim Impact Statements that have been submitted to the court. A Victim Impact Statement is a written statement by a victim of crime that describes the harm done to them and, more generally, the effect or impact that the crime has had on their life. In some fraud cases, the impact of the crime can extend to the other persons and not only to those who have suffered direct financial losses. Therefore, a final measure under this Act explicitly allows courts to also consider Community Impact Statements. A Community Impact Statement may describe the losses suffered by the community, such as the neighbourhood association, business association or seniors group, as a result of the fraud.

  The Act also increases the use of restitution orders in fraud cases by:

  • requiring judges to consider restitution from the offender in all cases of fraud involving an identified victim with ascertainable losses. Judges are now also required to provide reasons in cases where a victim has sought restitution but it has not been ordered;
  • requiring the Crown to advise the court if reasonable steps have been taken to provide victims with an opportunity to indicate whether they are seeking restitution for their readily ascertainable losses. This ensures that sentencing does not proceed without consideration of restitution or without any opportunity for victims to indicate to the Crown that they wish to seek restitution; and
  • providing victims with an optional form to indicate that they want the Crown to seek restitution from the offender and to set out their ascertainable losses.
• Updates on previous recommendations

  Funding for Child-Advocacy Centres

  Government Response

  The Victim Fund, part of the Federal Victim Strategy, provides grants and contributions to provincial and territorial governments and non-governmental organizations to make services available to meet the needs of victims of crimes. In 2010 and again in 2012, the Government committed dedicated funds in the Victims Fund to develop or enhance Child–Advocacy Centers (CACs) across the country. In 2010, funding of $5.25M over five years was announced to support the creation or enhancement of CACs in Canada. In April 2012, an additional $5M in funding over five years was announced for CACs.

  CACs adopt a seamless, coordinated and collaborative approach to addressing the needs of child and youth victims of physical and sexual abuse and other crimes. CACs seek to minimize system-induced trauma by providing a child-friendly setting for a young victim or witness and his or her family and by helping children and their families navigate the criminal justice system.

  Amendments to the Corrections and Conditional Release Act

  Government Response

  Amendments to the Corrections and Conditional Release Act (CCRA) to support the victims of crime contained informer Bill C–39, the Ending Early Release for Criminals and Increasing Offender Accountability Act were re-introduced in Bill C–10, the Safe Streets and Communities Act, on September 20, 2011, and received Royal assent on March 13, 2012. These reforms came into force on June 13, 2012, and addressed a number of recommendations outlined in the Office of the Federal Ombudsman for Victims of Crime March 2010 Special Report.

  These amendments included changes to the purpose and principles section of the CCRA to emphasize public safety as the paramount consideration under the Act. The amendments strengthen the management of offenders through a number of changes, including enshrining the requirement for correctional plan in the CCRA. The correctional plan will include behavioural expectations, objectives for program participation, and outline objectives for the offender's court–ordered obligations such as child support and victim restitution.

  The definition of a victim has been expanded as a result of Bill C–10 to include guardians/caregivers of dependents of victims who are deceased, ill or otherwise incapacitated. In addition, victims will be able to access more information about the federally supervised offender who harmed them including:

  • the location of an institution to which an offender is transferred and the reasons for the transfer;
  • a summary of the offender's program participation;
  • any convictions for serious disciplinary offences; and
  • reasons for a temporary absence.

  Importantly, these amendments will also enshrine a victim's right to participate in a Parole Board hearing and ensure that if an offender withdraws his/her Participation in a Parole Board hearing 14 days or less before the hearing, the Board may proceed with the review and decision reducing any unnecessary travel and stress for the victims.

Conclusion

Since 2006, one of our Government's top priorities has been giving victims are more effective voice in the criminal justice system. We have demonstrated our commitment through the number of legislative initiatives that have been brought forward and passed into law. Ultimately, our goals are to reform our criminal laws to ensure public safety, hold offenders accountable, support victims, and improve the efficiency and accessibility of the criminal justice system. Our vision remains a fair, accessible and accountable justice system for all Canadians, including victims of crime.

Realizing our vision in an era of rapid change absolutely requires ongoing dialogue and collaboration. As the Minister of Justice, I look forward to continuing to work closely with the Office of the Federal Ombudsman for Victims of Crime to improve the lives of victims in Canada.