Through the victims' lens: Submission to the Standing Committee on Justice and Human Rights on Bill C-10
An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts
Submission Focus: Part 3
Submitted by Sue O'Sullivan, Federal Ombudsman for Victims of Crime October 18, 2011
Office of the Federal Ombudsman for Victims of Crime
The Office of the Federal Ombudsman for Victims of Crime (OFOVC) is an independent resource for victims in Canada. The Office was created in 2007 to ensure the federal government meets its responsibilities to victims of crime.
Victims can contact the Office to learn more about their rights under federal law and the services available to them, or to make a complaint about any federal agency or federal legislation dealing with victims of crime. In addition to its direct work with victims, the Office also works to ensure that policy makers and other criminal justice personnel are aware of victims' needs and concerns and to identify important issues and trends that may negatively impact victims. Where appropriate, the Ombudsman may also make recommendations to the federal government.
Our mandate relates exclusively to matters of federal jurisdiction and enables the Office:
- to promote access by victims to existing federal programs and services for victims;
- to address complaints of victims about compliance with the provisions of the Corrections and Conditional Release Act that apply to victims of crimes committed by offenders under federal jurisdiction;
- to promote awareness of the needs and concerns of victims and the applicable laws that benefit victims of crime,including to promote the principles set out in the Canadian Statement of Basic Principles of Justice for Victims of Crime with respect to matters of federal jurisdiction, among criminal justice personnel and policy makers;
- to identify and review emerging and systemic issues, including those issues related to programs and services provided or administered by the Department of Justice or the Department of Public Safety and Emergency Preparedness, that impact negatively on victims of crime; and
- to facilitate access by victims to existing federal programs and services by providing them with information and referrals.
This submission will examine Part 3 of Bill C-10, specifically the proposed amendments to the Corrections and Conditional Release Act. The submission will also identify recommendations for further amendment with an overall goal of better meeting the needs of victims of crime.
Preface
In March 2010, the Office of the Federal Ombudsman for Victims of Crime (OFOVC) released its second special report entitled
"Toward a Greater Respect for Victims in the Corrections and Conditional Release Act"
which outlines thirteen recommendations to the federal government calling for amendments to the Corrections and Conditional Release Act (CCRA). Many of these recommendations relate directly to the amendments put forward in Bill C-10 and provide further information for consideration.The Office is pleased to see that Bill C-10 directly address a number of the recommendations put forward by the OFOVC. However, there continue to remain a number of recommendations to amend the CCRA included within the OFOVC's report which provide feasible options for more substantially addressing a broader scope of victims' needs and which are not currently included within the Bill.
The OFOVC has provided copies of this report to Committee members and strongly encourages the Committee to consider this report within the scope of its study and to suggest the incorporation of these additional recommendations as amendments to Bill C-10 in its current form.
Introduction
Since the coming into force of the Corrections and Conditional Release Act (CCRA) in 1992, considerable progress has been made in terms of creating a respectful relationship between federal corrections and parole, and victims of crime. Despite the improvements made, victims continue to have very few rights and, as a result, continue to call for further enhancements to the legislation to ensure that their needs are taken into account and the methods to address them enshrined in law.
Bill C-10 proposes further enhancements to this legislation on behalf of victims, including providing discretion for additional information to be shared with the victim about the offender, a victim's right to present a victim statement at a parole hearing and a limitation on an offender's capacity to cancel a parole hearing, assuming no exigent circumstances, within 14 days of a scheduled hearing. These amendments are a positive step forward and help to enshrine further rights for victims within the criminal justice framework. The OFOVC supports these amendments.
This being said, it is important to recognize that Bill C-10 does not address the scope of victims' needs, and that much more can be done in amending the CCRA to address the unacceptable imbalance between offender and victim rights, where offenders' rights far outweigh those of the victims.
It is therefore the position of the Ombudsman and the Office of the Federal Ombudsman for Victims of Crime (OFOVC) that the study of Bill C-10 in committee provides a rare and important opportunity to include further practical amendments to the CCRA to better meet the needs of victims and therefore strengthen the federal corrections and parole system overall.
The submission below outlines support for the proposed amendments of the CCRA included in Bill C-10 that apply to victims of crime, relating specifically to victims' interaction with parole hearings, increasing the information provided to victims, and increasing offender accountability to victims. This submission will also outline recommendations for further amendments in the appropriate categories that would serve to better meet the needs of victims.
1. Victims and parole hearings
(a) Enshrining in law the right of victims to read statements at Parole Board of Canada hearings
In 2001, the Parole Board of Canada (PBC) amended its policy to permit victims to present statements at parole hearings. PBC members report that victim statements are useful in assessing the nature and extent of harm suffered by the victim; the risk of reoffending the offender may pose if released; the offender's understanding of the impact of the offence; and conditions necessary to manage the risk that might be presented by the offender.1 Beyond the benefits to board members, the ability to present a statement can be extremely important for victims for a variety of reasons including having an opportunity to have their voices heard both by the offender and decision makers. Accordingly, the OFOVC supports the proposed amendment included in C-10 that would enshrine in law a victims' right to present their statement at a hearing.
However, while the principle of enshrining this right is sound, the underlying assumption is that victims will be permitted to attend the hearing in the first place. In fact, in the current system victims do not have an enshrined right to attend a parole hearing and Bill C-10 does not propose the appropriate amendments to correct this. Although it is rare that a victim is denied observer status at a hearing2 , in such cases a victim's right to present a statement in person would become moot. Furthermore, though denials may be rare, the mere fact that victims are permitted attendance on a discretionary basis rather than granted the lawful right to attend a hearing speaks to their role within the system and the imbalance between offender and victim rights. As such, the OFOVC submits the following for consideration:
Recommendation 1
Amend subsection 140(4) of the CCRA to provide victims a presumptive right to attend a hearing unless there is justification to believe their presence will disrupt the hearing or threaten the security of the institution.
(b) Removing an offender's right to withdraw their application for a parole hearing 14 days or less before the hearing for circumstances within his/her control.
The preparation, both emotional and logistical, required on the part of victims to prepare for a parole hearing can be enormous.The concerns, anxieties, and resurfacing of the impact of the crime brought about by the need to prepare an up-to-date victim statement can be an extremely difficult process for many victims. In addition to the emotional burden, victims often have to plan well in advance to attend a hearing; taking time off work, arranging for child care, and undertaking travel.
Given this, it is understandable that many victims have expressed concern over the ability of offenders to cancel parole hearings at the last minute without providing a valid reason. This is not an infrequent occurrence; between 2001-02 and 2009-10 there were a total of 147 requests by victims to speak at hearings that did not take place as scheduled due to the offender.3 Their frustration is exacerbated when there is no reason given, or required to be given, for the cancellation.
As such, the amendment proposed within Bill C-10 to remove the ability of an offender to withdraw an application for a hearing within 14 days for reasons within his/her control is a positive step forward. Most significantly, this amendment acknowledges the emotional and financial consequences for victims of crime in preparing for a hearing, and moves to enshrine – to some degree – a higher level of consideration for victims' needs within the corrections and conditional release process.
Furthermore, this amendment responds directly to a recommendation made by the OFOVC in Toward a Greater Respect for Victims in the Corrections and Conditional Release Act and is thus strongly supported.
(c) Additional Recommendations regarding victims and parole hearings
In addition to the proposed amendments to the CCRA related to victims and parole hearings included in Bill C-10, there are additional realistic changes that can be made to ensure that victims' needs and concerns are considered throughout the parole process. Victims in contact with the OFOVC regularly voice that they wish to have more options for how they can participate in parole hearings. Many wish to participate in a hearing without feeling intimidated or fearful, and without causing significant disruption to their lives and finances.
While some victims will find it important and even necessary to face their offender in person, others may find this idea intimidating, overwhelming, or generally undesirable. Unfortunately, in the current system, attending the parole hearing in person (or through video conference in exceptional circumstances), is the only way that a victim can obtain the most complete information about the offender who harmed them and the progress they have made, if any. For those victims who are fearful of encountering their offender for any number of reasons, including fear of retaliation, there is a distinct lack of options for observing a parole hearing. Only in exceptional circumstances can victims request that they attend the hearing via video conferencing technology or closed circuit television. Attending by secure web cast or audio feed is not an option.
The lack of options for attending a parole hearing would not be as problematic if a victim who did not attend the hearing had choices and options for reviewing the proceedings at a later date. The reality, however, is that there are no alternatives for victims in this case; no transcripts are provided, and victims cannot review audio footage, even when it exists. The only option is for a victim to request a copy of a PBC Decision Registry, which provides a general summary of the decision rendered by the Board members, along with some contextual information. The Registry, however, is not a complete record of the hearing and contains significantly less information about the offender's progress and his or her interaction with Board. As such, the OFOVC submits the following for consideration;
Recommendation 2
Amend section 142 of the CCRA to allow victims the opportunity to listen to recordings of hearings, or where possible, to attend/observe parole hearing proceedings in person, by video conference, teleconference or other remote real time technology.
In addition to providing options for attending parole hearings, further consideration should be given to the burden borne by victims in relation to the frequency of hearings. While victims can chose whether or not to attend a parole hearing, many victims feel they have no choice; that it is important that they be there to represent the lost loved one who, tragically, can no longer be there to represent themselves. In particular, families of a homicide victim appear to feel a sense of responsibility to be present to represent their loved one. Some families have expressed the view that their presence is essential so that their loved one is not forgotten in a process that is largely focused on the offender.
Presently, those serving life and indeterminate sentences can apply for parole every two years once they have reached their parole eligibility date. The emotional strain brought about by waiting for, and living through parole hearings every two years only serves to heighten the pain and suffering of the victim and their family. As such the OFOVC submits the following for consideration:
Recommendation 3
Amend section 123(5) of the CCRA to extend the time between hearings to five years for those serving life and indeterminate sentences.
Finally, in addition to the emotional toll that parole hearings can have, a victim's inadvertent absence due to a lack of communication regarding parole dates can be as devastating.
Currently, if a victim it not properly notified of a parole hearing and therefore does not attend, they have no recourse through which to address the lost opportunity. Victims feel that the lack of recourse suggests that their role in the system is insignificant and is not perceived to add value to the process. For victims who want a voice in the system, this can be seen to underscore the belief that their experiences and knowledge of the incident and of the offender are of marginal importance despite the fact that it is they who have suffered. Establishing in the CCRA the right of victims to seek a new hearing in the event that they were not properly notified in advance will address the need expressed by victims to be active and informed participants in the parole hearing process.
Recommendation 4
Amend section 147 of the CCRA to permit a registered victim to request a new hearing be conducted if he or she did not receive proper advance notification of the hearing.
2. Increasing informatiion provided to victims
(a) Broadening the definition of individuals that may be provided information about offenders
Every victim is unique, as are the particular circumstances of their victimization and the immediate circle of loved ones who may be most impacted. In cases where the dependent of a victim relies on the assistance of a guardian or caregiver, the need for those guardians and caregivers to make arrangements and receive information on behalf of a victim's dependent becomes of paramount importance.
The amendment proposed within Bill C-10 would allow for the provision of the same information that victims can receive to the guardians /caregivers of a victim's dependent who is deceased, ill or otherwise incapacitated. As this amendment reflects and addresses the diverse circumstances of families who have been victimized, the OFOVC is pleased to support it.
(b)Increasing the amount of information that can be provided to victims on a discretionary basis
One of the most basic rights we would expect a victim to have is the right to information; information about their rights, about the criminal justice system and about the offender who harmed them.
In fact, victims have very few rights to any information, and what little information they are entitled to they can only have if they first register formally as victims with the Government of Canada.
Part 3 of Bill C-10 would amend the CCRA to allow the Correctional Service of Canada (CSC) and PBC to provide more information to victims on a discretionary basis. This increased information includes:
- The name and location of the penitentiary to which the offender has been transferred, as well as the reasons for the transfer, and whenever possible, provide the reasons for the transfer of an offender to a minimum security prison in advance of the transfer
- Information about the offender's participation in correctional programming
- An offender's convictions for serious disciplinary offences
- Reasons for temporary absences by the offender
Prison transfers
Prison transfers can be confusing and upsetting for some victims, especially when the transfer is made from a higher to a lower security institution. Notification to victims currently takes places only after a transfer has taken place, and victims are not provided with the specific reasons for the transfer.
Victims have clearly articulated that they want advance notification of transfers, and more information regarding the reasons for transfer. Recommendation 37 of the Subcommittee on the CCRA of the Standing Committee on Justice and Human Rights, in their 2000 report A Work in Progress called upon the Government to amend the CCRA to provide victims with notification
"whenever possible in advance of the planned, anticipated or scheduled routine transfer of inmates."
Accordingly, the OFOVC supports the amendment to provide victims with the name and location of the penitentiary to which an offender has been transferred and the provision of the reasons for the transfer. However, the amendment as proposed only provides for notification in one of a number of possible transfer options, and does not provide for notification to victims in cases of an increase in security levels or a decrease from maximum to medium, for example. Regardless of the type of transfer, all victims deserve to be informed in advance of an offender transfer. To address this gap, the OFOVC submits the following for consideration:
Recommendation 5
Amend sections 26 and 142 of the CCRA to and provide advance notification of all transfers, whenever possible, to the victim(s).
Information about an offender's participation in correctional programming
Victims understand that, in most cases, the offender who harmed them will eventually get out of prison and they want to understand what progress, if any, he or she has made towards rehabilitation.
In the current system, this is not an option for victims. Victims are not given any information related to the offender's participation in correctional programming or notified when their offender is subject to any disciplinary action. Generally, victims have no information about the offender's progress – whether he or she had taken any training or steps towards rehabilitation or whether he or she continues to have violent or criminal tendencies. They have no way of knowing whether the offender is making any attempts to address the reasons behind their criminal behaviour.
This kind of information is useful to victims in preparing their victim statements for parole hearings. Without up-to-date information, victims often feel as though they are working in the dark. This makes it difficult to provide the most relevant victim statement, which can be a source of great frustration for some victims who feel they must be there to give a voice to the loved one who can no longer speak for themselves.
Research shows that having this type of information can also help victims on their healing journey. Experts state that
"in addition to the victim's need to feel safe, information about the offender's treatment plan and movement within the correctional system may promote the psychological healing of some victims, and may directly increase victim satisfaction with the justice process.4 This satisfaction is explained in part through the belief that the offender's participation in the justice process has spared an innocent victim a similar experience."
5Accordingly, the amendments within Bill C-10, allowing for the provision of information to victims about an offender's participation in correctional programming, convictions for serious disciplinary offences, and reasons for temporary absences by the offender are very much in line with the kinds of information victims have told the OFOVC they want.
However, the Bill only goes as far as to make this information available at the discretion of CSC or PBC, rather than to enshrine it as a right. The OFOVC feels that in a system where victims have no recourse if they are denied, this type of information should be given in all cases unless it would pose a significant safety threat to do so.
While the provision of additional information to victims responds directly to recommendations made by the OFOVC in Toward a Greater Respect for Victims in the Corrections and Conditional Release Act, and while the OFOVC supports this change, it submits the following for the Committee's consideration:
Recommendation 6
Automatically provide all information that is currently considered discretionary under the CCRA to registered victims, except in cases where it may threaten the safety of an offender, individual, or institution.
In addition to needing information related to an offender's participation in correctional programming and disciplinary offences, victims have expressed to the OFOVC the desire to see a photo of the offender at the time of release into the community for the purpose of safety planning. For victims, in cases where the offender has been incarcerated for many years or has drastically altered their physical appearance, a photo of the offender is an important piece of information necessary for effective safety planning, and consequently increased peace of mind. This could be easily addressed by including a photo of the offender, upon request, to the list of information to be provided to victims. As such, the OFOVC submits the following for consideration:
Recommendation 7
Amend subsections 26(1) and 142(1) of the CCRA to provide the CSC and PBC discretion to show a photo of the offender to a registered victim.
3. Increasing offender accountability to victims
(a) Underscoring the importance of the correctional plan in managing an offender's sentence including restitution for victims.
Restitution is a discretionary order imposed by the court and paid to the victim, by the offender, to cover quantifiable losses. It is imposed not only for the benefit of the victims, but in order to help offenders acknowledge their role in the offence and be held accountable for the harm they have caused to their victims. Ultimately, in addition to helping victims recover losses, restitution serves as part of an offender's rehabilitation and as such contributes to a more effective corrections process.
Unfortunately, restitution is both underutilized and poorly enforced in Canada, carrying a significant negative impact on victims of crime.
The OFOVC supports measures that aim to improve the collection of restitution for victims of crime, including underscoring the importance of the correctional plan, including victim restitution. This being said, Bill C-10 currently does not contain any provisions to address this. As such, the OFOVC submits the following for consideration:
Recommendation 8
Amend subsection 78(2) of the CCRA to authorize the CSC to deduct reasonable amounts from an offender's earnings to satisfy any outstanding restitution orders.
Conclusion
In conclusion, the proposed amendments to the CCRA included in Bill C-10 are positive steps forward for victims of crime. However, these changes alone do not go far enough.
The OFOVC encourages the committee to carefully consider the recommendations provided in this submission. It is clear from its past work and recommendations made previously by the Sub-committee on the Corrections and Conditional Release Act of the Standing Committee on Justice and Human Rights in their report A Work in Progress: The Corrections and Conditional Release Act that the Committee recognizes the important of these changes.
The OFOVC implores the members of the Committee to seize this opportunity to address the needs of victims of crime in amending the Corrections and Conditional Release Act, and to take action to affect real change for victims of crime in Canada.
Appendix A: List of recommendations
Recommendation 1
Amend subsection 140(4) of the CCRA to provide victims a presumptive right to attend a hearing unless there is justification to believe their presence will disrupt the hearing or threaten the security of the institution.
Recommendation 2
Amend section 142 of the CCRA to allow victims the opportunity to listen to recordings of hearings, or where possible, to attend/observe parole hearing proceedings in person, by video conference, teleconference or other remote real time technology.
Recommendation 3
Amend section 123(5) of the CCRA to extend the time between hearings to five years for those serving life and indeterminate sentences.
Recommendation 4
Amend section 147 of the CCRA to permit a registered victim to request a new hearing be conducted if he or she did not receive proper advance notification of the hearing.
Recommendation 5
Amend sections 26 and 142 of the CCRA to share information and provide notification of all transfers, whenever possible, to the victim(s).
Recommendation 6
Automatically provide all information that is currently considered discretionary under the CCRA to registered victims, except in cases where it may threaten the safety of an offender, individual, or institution.
Recommendation 7
Amend subsections 26(1) and 142(1) of the CCRA to provide the CSC and PBC discretion to show a photo of the offender to a registered victim.
Recommendation 8
Amend subsection 78(2) of the CCRA to authorize the Correctional Service of Canada to deduct reasonable amounts from an offender's earnings to satisfy any outstanding restitution orders.
- Parole Board of Canada. "Victims Presenting Oral Statement: Fact Sheet." Accessed at: http://www.pbc-clcc.gc.ca/victims/factsheet-eng.shtml#11." (return to Footnote 1)
- According to PBC Performance Report 2009-2010, there have been a total of two victims between fiscal years 2002-2003, and 2009-2010 who requested to speak at a hearing, but were denied by CSC.(return to Footnote 2)
- PBC Performance Monitoring Report 2009-2010. Accessed at: http://www.pbc-clcc.gc.ca/rprts/pmr/pmr_2009_2010/2009-2010-eng.pdf." (return to Footnote 3)
- David Beatty, Dr. Dean Kilpatrick, and Susan Smith Howley. (December 1998). The Rights of Crime Victims – Does Legal Protection Make a Difference? NIJ — Research in Brief. Washington, D.C.: National Institute of Justice, U.S. Department of Justice. (Copies of this NIJ Research in Brief and the full report, Statutory and Constitutional Protection of Victims' Rights: Implementation and Impact on Crime Victims are available from the National Criminal Justice Reference Service. (NCJRS)." (return to Footnote 4)
- Ibid." (return to Footnote 5)