Government Response to the 2011-2012 Annual Report of the Office of the Federal Ombudsman for Victims of Crime
Foreword
I am pleased to release the Government's Response to the 2011-2012 Annual Report of the Office of the Federal Ombudsman for Victims of Crime.
As Minister of Justice and Attorney General of Canada, I share the Ombudsman's commitment to victims of crime. I am proud of the work that our Government is doing; we have worked hard to change the justice system to better meet victims' needs.
We have consistently promoted victims' access to justice and participation in the criminal justice system, and have allocated more than $100 million to programs and services that benefit victims of crime. This includes funding for new or enhanced Child Advocacy Centres across the country, to help the most vulnerable of victims.
Our Government's legislative reforms have given victims of crime a more effective voice in our criminal justice system; however more remains to be done as crime remains a serious issue that affects all Canadians. Restoring Canadians' confidence in their justice system has been an important priority for our Government. As we move forward to ensure that Canadians have safe streets and communities to live in, our Government will build on its successes and continue to focus on tackling crime and supporting victims' rights.
I look forward to a continued productive relationship with the Ombudsman's Office.
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 $26 million over two years, which 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 of Canada, the Public Prosecution Service of Canada, and at the Correctional Service of Canada.
Recently, the Government further increased its commitment to victims of crime with additional funding for Child Advocacy Centres and time-limited operational funding for victim-serving non-governmental organizations. In addition, in April 2012, the Prime Minister announced a new federal income support program to help ease the financial hardship of parents struggling to cope with the death or disappearance of a child, which occurred as a result of a crime. These programs further demonstrate the Government's continued priority of addressing the concerns of victims of crime.
Responses to recommendations in the report
More information for registered victims through the Safe Streets and Communities Act
Government Response
Bill C-10, the Safe Streets and Communities Act, which came into force on June 13, 2012, amended the Corrections and Conditional Release Act (CCRA) to entitle a registered victim to present a statement at a Parole Board of Canada (PBC) hearing. Victims are entitled to attend parole hearings as long as they meet the requirements set out in section 140 of the CCRA. Only in rare instances are victims not permitted to attend a hearing.
The PBC offers flexible arrangements, within its discretion, to accommodate victims' needs should they be unable to attend a parole hearing in person. This includes allowing victims to participate at a parole hearing via videoconference on a case-by-case basis, where possible. In addition, the PBC may share a copy of its written decision regarding an offender with victims who request a copy of the decision. The written decision is the final record of a PBC hearing. The Government is currently examining options to allow victims to listen to recordings of parole hearings and permit more victims to participate at a parole hearing via videoconference.
As part of its mandate under the CCRA, the PBC must ensure that the timing of release best facilitates the gradual and safe reintegration of an offender. Following a denial for release on full parole, an offender must address those areas in their Correctional Plan that require further progress before the offender's risk can be safely managed in the community. Private Member's Bill C-479, introduced by David Sweet, Conservative Member of Parliament for Ancaster-Dundas-Flamborough-Westdale, would increase mandatory review periods for offenders convicted of violent offences. Bill C-479 would increase mandatory review periods following denial or cancellation of parole and detention from: two years to five years following parole denial; two years to four years initially, and every five years thereafter following parole cancellation or termination; and one year to two years for detention reviews.
The Government of Canada recognizes that it is essential that victims be treated fairly and inclusively in corrections and criminal justice decision-making. To ensure victims are aware of pending parole hearings, sections 26 and 142 of the CCRA provide that registered victims shall receive information regarding parole eligibility dates and reviews. In addition, amendments to the CCRA included in Bill C-10 also ensure that if an offender withdraws his or her participation in a Parole Board hearing 14 days or less before the hearing, a review and decision may still take place, thereby reducing victims' travel and stress. The PBC does its utmost to provide notice as soon as possible, realizing that advance notice is important to victims. The PBC continues to review and revise its policies and procedures on a regular basis with victims' needs in mind.
Bill C-10 included amendments to the CCRA that allow registered victims to be provided with a summary of the reasons for the transfer and the name and location of the institution in which the sentence is to be served. If the offender is to be transferred to a minimum security institution, victims will be provided with this information in advance, where it is possible to notify them before the transfer.
Bill C-10 amended the CCRA to allow registered victims to obtain some key information when their interests outweigh the impact of the invasion of the offender's privacy regarding reasons for offender transfers and the name and location of the penitentiary, program participation, reasons for temporary absences, waiver of parole hearings, and serious disciplinary offences that the offender has committed. CSC and PBC will review the recommendations to ensure that as much information as the legislation allows is provided where appropriate to victims. Private Members' Bill C-479 also proposes to amend paragraph 142(1) of the CCRA to make the disclosure of the following information to victims mandatory instead of discretionary:
- the date, if any, on which the offender is to be released on unescorted temporary absence, escorted temporary absence where the Board has approved the absence as required by subsection 746.1(2) of the Criminal Code, parole or statutory release;
- any of the conditions attached to the offender's unescorted temporary absence, parole or statutory release and the reasons for any unescorted temporary absence; and
- the destination of the offender when released on unescorted temporary absence, parole or statutory release, and whether the offender will be in the vicinity of the victim while travelling to that destination.
Bill C-479 would also allow for the discretionary disclosure of information pertaining to the offender's Correctional Plan, including information regarding the offender's progress towards meeting the objectives of the plan, and would amend the CCRA to state that if a transcript of a Parole Board hearing is made, a copy of it would be provided by the Board free of charge to the victim, a member of the victim's family or the offender, upon written request. At the time of this response, Bill C-479 was at 2nd Reading in the House of Commons
Under section 8(2)(m) of the Privacy Act, a photo of an offender can be shown to a registered victim in exceptional circumstances such as when an offender escapes or is unlawfully at large and the victim is considered to be at risk. The Government is currently examining options to address this recommendation.
Bill C-10 included amendments that underscore the importance of the Correctional Plan in managing an offender's sentence and encourage offenders to comply with their court-ordered obligations, including restitution to victims. Garnishment of offenders' wages to pay victim restitution has been carefully reviewed. Policy considerations include the implications of placing a priority on paying restitution over other court-ordered obligations including child and spousal support. Private Members' Bill C-350, introduced by Guy Lauzon, Conservative Member of Parliament for Stormont—Dundas—South Glengarry, aims to broaden the purpose of the correctional system as defined in section 3 of the CCRA in order to encourage the accountability and responsibility of offenders in regard to addressing their obligations to society. Bill C-350 would ensure that any debt owed to an offender as a result of a monetary award by a court, tribunal, or agency pursuant to a legal action or proceeding against the Crown, or agents/employees of the Crown, be paid to spousal or child support orders, victim surcharge or restitution orders, and any beneficiary with a civil judgment against the offender. At the time of this response, Bill C-350 is currently before the Senate Standing Committee on Legal and Constitutional Affairs.
Long-Gun Registry
Government Response
Bill C-19, Ending the Long-gun Registry Act, was approved by Parliament on April 4, 2012, and received Royal Assent and came into force on April 5, 2012, thereby removing the requirement to register non-restricted firearms (i.e., long-guns). It also provides for the deletion of all long-gun registration records. The records on non-restricted firearms in the Canadian Firearms Registry have been deleted as of October 31, 2012, except for those related to Quebec (due to a judicial injunction, the registration of long-guns is being maintained for Quebec residents, pending a final court decision.) The long-gun registry needlessly and unfairly targeted law-abiding Canadians, while doing nothing to reduce crime or strengthen the Government's efforts to keep guns out of the hands of criminals. The Firearms Act still requires individuals to pass the required Canadian Firearms Safety Course and undergo a screening process; to hold a valid firearms license in order to acquire and possess a firearm; and to obtain a registration certificate for restricted and prohibited firearms.
Production of Records in Sexual-Offence Proceedings
Government Response
The Criminal Code provides comprehensive protection against all forms of sexual violence. It prohibits any non-consensual sexual activity, ranging from sexual touching to sexual intercourse and clearly defines "consent". These protections are provided through sexual offences that protect all Canadians as well as through offences that specifically protect children and the disabled.
In 1997, the Act to amend the Criminal Code (production of records in sexual offence proceedings) (former Bill C-46) brought into force reforms impacting on the Criminal Code's sexual assault provisions. These reforms responded to public concerns about complainants' Charter rights to privacy and equality and, in particular, the 1995 Supreme Court of Canada decision in O'Connor, which established a low threshold for disclosure of complainants' personal records in sexual assault cases. The 1997 amendments restricted the accused's access to the personal records of complainants in sexual assault proceedings by creating a specific procedure to be followed in such cases. The Supreme Court of Canada has since upheld the constitutionality of former Bill C-46's provisions.
The Senate Standing Committee on Legal and Constitutional Affairs completed the statutory review of the provisions as required by former Bill C-46 and tabled its report on December 13, 2012. The Government is reviewing the Committee's report.
In fiscal year 2012-13, the Department of Justice Victims Fund funded the National Judicial Institute to develop a resource for judges on sexual assault trials. This bench book is nearing completion and will be available to all judges – federal and provincial/territorial – and provides social science research, case law and other resources for all aspects of a sexual assault trial including third party records applications.
The Research and Statistics Division within the Department of Justice has completed three reports for a study interviewing sexual assault/abuse survivors. The study had three distinct groups of survivors: men; women in the provinces; and women and men in one of the territories. A summary of the study appears in the Victims of Crime Research Digest, No.6 (see link below) and the release of the male study should be available on the Departmental website by early August 2013. The Victims of Crime - Research Digest
Improving the Efficiency of Large and Complex Trials
Government Response
On June 13, 2011, Bill C-2 the Fair and Efficient Criminal Trials Act was introduced to improve criminal procedures in response to the onerous demands that long, complex trials place on the criminal justice system. Bill C-2 received Royal Assent on June 26, 2011. The Act introduced significant changes in Canadian criminal procedure and provided additional tools to streamline long and complex trials by strengthening case management, reducing duplication of processes and otherwise improving criminal procedure.
The provisions to strengthen case management provide for, inter alia, the appointment of a Case Management Judge empowered to exercise greater control and management of the preliminary phase of the trial by, among other things, imposing deadlines on the parties, ordering them to attend a conference and assisting them in narrowing issues, making admissions and reaching agreements. Other provisions of the Act empower the Case Management Judge to adjudicate preliminary issues upon which the remainder of the trial often rests, thus facilitating an earlier resolution of the case. The Act also allows a judge to preside over the joint hearing of preliminary issues raised in separate but related trials. Furthermore, the decisions of certain preliminary issues (i.e. Charter, disclosure or admissibility of evidence) remain binding on the parties in any new trial ordered as a result of a mistrial or a severance of the indictment. The objective of these two new measures is to avoid duplication of hearings and prevent, inasmuch as possible, witnesses from having to testify on numerous occasions.
The Act also includes measures to enhance the protection of juror identity and to allow, in exceptional circumstances, increasing the maximum number of jurors hearing the evidence to 14 (subject to the jury being pared down to 12 jurors for deliberations.)
Most of the provisions of the Bill came into force on August 15, 2011, with the exception of the provisions of the Bill allowing for the swearing of up to 14 jurors, which came into force on October 24, 2011. It should be noted that the provisions of the Bill applied to all cases before the courts at the time of its coming into force and not only to new cases involving offences committed after the Bill came in force.
Although still too early to assess, it is expected the impact of the Act will play a significant role in improving justice efficiencies by, among other things, strengthening case management and reducing duplication of processes. As a result, this may reduce the duration of large complex trials and by extension the emotional burden on victims throughout the criminal justice process.
Enhancing Consideration of Victims where Offenders are "Not Criminally Responsible"
Government Response
On February 8, 2013, the Government introduced Bill C-54, the Not Criminally Responsible Reform Act. It proposes Criminal Code reforms to address concerns about high-risk accused persons found not criminally responsible on account of mental disorder who may pose a threat to the safety of the public if released into communities and to respond to victims' requests for greater involvement in this area of the justice system.
The Government is strongly committed to protecting the safety of Canadians and ensuring victims have a more effective voice in our justice system. Consideration for victims and the safety of the general public should be primary concerns when decisions are being made about high-risk accused found not criminally responsible on account of mental disorder being released into our communities. Bill C-54 also seeks to ensure that, upon request, victims are notified if the accused is released absolutely or conditionally. The Government remains committed to keeping our streets and communities safe for our children and families.
Access to treatment would not be affected by the proposed reforms.
The Canadian criminal justice system exempts persons from criminal responsibility if, at the time they committed conduct that would constitute a criminal offence, they were suffering from a mental disorder that rendered them incapable of appreciating the nature and quality of their actions, or of knowing that it was wrong. Such a person is neither acquitted nor found guilty. Instead, they are found not criminally responsible on account of mental disorder. They may be discharged in the community, released on conditions, or kept in custody in a mental health institution. Persons found not criminally responsible on account of mental disorder are not incarcerated in prisons.
The administration of Review Boards falls under the jurisdiction of the provinces and territories. Provincial/territorial victim services work with Review Boards to ensure victims' participation in Review Board hearings. In New Brunswick and British Columbia, provincial financial assistance is available for victims to attend these hearings. At present, federal funding is not available for victims to attend Review Board hearings. However, financial assistance is available through the Victims Fund for provinces and territories to improve victim services in their jurisdictions. If a province or territory decides to create a program to offer financial assistance for victims to attend Review Board hearings as a priority for their jurisdiction, the province or territory could apply for project funding under the Victims Fund for some of the costs of such a new program.
Considering Victim's Needs while Attending Parole Hearings
Government Response
Ensuring that interactions with victims occur within the broader context of the Canadian Statement of Basic Principles of Justice for Victims of Crime is a priority of both CSC and PBC. Both agencies recognize that, for many victims, Parole Board hearings are the only time they will ever enter a CSC institution and that this experience can be emotionally laden and stressful for them. In light of this recommendation, both CSC and PBC are committed to reviewing and exploring measures to improve the experience for victims at hearings. In addition, CSC agreed to produce guiding principles to assist staff to manage victim considerations at CSC operational sites. CSC and PBC look forward to working with the Ombudsman to ensure that victims' experiences during PBC hearings are as positive as possible.
More Information for Victims About Elder-Assisted Hearings
Government Response
A fact sheet containing Questions and Answers for victims on Elder Assisted Hearings (EAH) has been developed and is available in print and on the PBC website.
The PBC has also created a video on what to expect during the EAH process and can be accessed via the PBC website.
Notifying Victims of the Deportation Status of Federal Offenders
Government Response
As stated in the previous response to the Ombudsman's Special report, Shifting the Conversation, the Government of Canada recognizes the importance of providing registered victims with information regarding the whereabouts of federal offenders.
Pursuant to section 26 of the CCRA, CSC may disclose to a registered victim the name and location of the penitentiary in which the offender's sentence is being served; the offender's destination on any temporary absence work release, parole or statutory release and whether the offender is in custody and if not, the reason why the offender is not in custody. Once a federal offender is released from the CSC into CBSA custody pending removal from Canada, there is no mechanism by which CSC can track the whereabouts of the offender. As a result, CSC is unable to notify victims of an offender's whereabouts.
Unlike the Criminal Code and the CCRA, the Immigration and Refugee Protection Act (IRPA) does not address the disclosure of information to victims. Consequently, the CBSA does not have the express authority under the IRPA to disclose information about an individual's deportation status to a victim of crime. Nevertheless, our Government remains committed to exploring options available within the existing privacy regime, to identify ways to share with registered victims information regarding the detention and removal of non-citizen offenders.
Updates on recommendations made in 2010-2011
Guidelines for victim statements
Government Response
The PBC has updated the section on victims' statements in the Guidelines for Regional Communications Officers. The PBC finalized and distributed materials to assist victims through the process of preparing and delivering a statement, including a new fact sheet and a checklist for victims developing a statement. These products are available on-line at the PBC's website. The PBC also just released a new video on its website that informs victims of the options they have at the PBC, including the presentation of a videostatement. The video shows how a hearing works and directs victims to other information that may assist them in preparation for, and during, a Parole Board hearing.
Missing-persons index
Government Response
Since Budget 2010, which invested $25 million over 5 years to improve community safety and ensure that the justice system and law enforcement agencies can better respond to cases of missing and murdered persons, the RCMP has established a National Centre for Missing Persons and Unidentified Remains (NCMPUR), which supports law enforcement, medical examiners and chief coroners with missing persons and unidentified remains cases on a national level.
In February 2013, the NCMPUR launched a national public website, which provides the public with a national access-point to search published missing persons and unidentified remains profiles and to provide tips and information to law enforcement. All information published on the website is provided directly from police investigators, coroners and medical examiners. In addition, the NCMPUR is currently developing the Missing Persons and Unidentified Remains Database, the first national database specifically for missing persons and unidentified remains cases. The database will allow for enhanced comparative analysis across jurisdictions and agencies by the National Centre. This database is expected to be operational in 2013.
Conclusion
The Government continues to work to ensure that the Canadian justice system evolves as our society changes so that Canadians can continue to be proud of the criminal justice and corrections systems. We work closely with victims of crime and our partners in the provinces and territories, with law enforcement and other stakeholder groups to better align the justice system to meet the needs and expectations of Canadians.
As the Minister of Justice and Attorney General of Canada, I look forward to continuing the productive relationship with the Ombudsman in pursuing our joint objective of addressing victims' needs.