Victims Bill of Rights: Remarks to the Standing Committee on Justice and Human Rights on Bill C-32

An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts
Sue O’Sullivan, Federal Ombudsman for Victims of Crime
Remarks delivered November 4, 2014

Introduction

• Bonjour, Monsieur le président et chers membres du Comité.
• Thank you for inviting me here today to discuss Bill C-32, the Canadian Victims Bill of Rights.

Mandate

• The Office of the Federal Ombudsman for Victims of Crime helps victims individually and collectively.
• Individually, we speak with victims every day; answering their questions and addressing their complaints.
• Collectively, we help victims by reviewing important issues and making recommendations to the federal government on how to improve its laws, policies or programs, to better support victims of crime.

How we came to our recommendations

• Since the office opened in 2007, one of the top issues victims have consistently raised is that of victims’ rights. The development of nationally consistent victims’ rights has been a priority of ours for several years.
• In June of 2013, I made 29 recommendations to the Department of Justice as part of its public consultation on developing a Victims Bill of Rights.
• These recommendations stem from interactions with thousands of victims and the feedback and input of interested stakeholders who shared their views and wishes with our Office.
• Following the tabling of the Bill in April 2014, my office released a response that assessed how the Bill addressed our recommendations as well as other issues important to victims
• I have provided copies of my remarks to the committee as well as documentation that outlines in detail my recommendations on the Victims Bill of Rights. Given time restraints, I won’t discuss all of my recommendations, but I will highlight a few amendments that I believe are needed to strengthen the Bill.

The Victims Bill of Rights

• This Bill recognizes the tireless work and effort of the victims and victims’ advocates who have fought for change in Canada for many years.
• I commend the Government of Canada for seeking the participation of victims in developing this Bill, and I would hope to see a similar approach taken in the future on other significant policy or legislative changes affecting victims of crime.
• This Bill marks a significant achievement; but it needs to be strengthened to more effectively address the full breadth of victims’ needs and concerns.

Strengthening Victims’ Rights – Right to be informed, considered, protected, and supported.

• To strengthen the Bill, the rights of victims must be enhanced throughout the criminal justice process, starting at time of crime, through the courts and through to post-conviction and conditional release.
• My recommendations aim to further strengthen the treatment of victims in terms of their rights to be informed, considered, protected and supported.

Informing Victims

• One of the most basic rights we would expect a victim to have is the right to information.
• This Bill provides victims the right to request information about the justice system, their role within it, and the services and programs available to them. This would include the right to receive information about the investigation and proceedings and certain information about an offender or accused.
• While the Bill provides for increased rights to information, it does not outline who is responsible for providing that information at all stages.
• I recommend that victims be automatically provided, at the time of crime, with clear information about their rights under the Bill, including what information they are entitled to receive and who is responsible for providing it, at what point. Furthermore, victims should be able to receive this information in the format of their choice.
• Victims also want information about the status of offenders as they serve their sentence.
• The Victims Bill of Rights does provide victims with rights to information about the offender, yet with some simple amendments, it could be more responsive to victims’ needs and concerns.
• For instance, the Bill gives victims automatic access to a recent photograph of the offender prior to release or conditional release. I recommend that this should also apply in cases where the offender is on an escorted temporary absence pass.

Choice and Options

• The Bill does not provide sufficient measures for recognizing and addressing the importance of providing victims with choice and options.
• For example, there are no provisions providing victims with options for how they may wish to attend a parole hearing in order to accommodate either their personal circumstances which may make it difficult to travel, or their anxieties and fears that may make attending a parole hearing in person impossible.
• I recommend the Bill be amended to provide victims with the right to choose how they will attend a parole hearing and/or present a victim statement, be it in person, by video or tele-conference, via closed circuit television or through the use of other secure, reasonable and available technologies.
• As well, under the Bill, victims may listen to an audio recording of a parole hearing in cases where they are unable to attend.
• I recommend that victims should have the option of listening to audio recordings of hearings regardless of whether or not they attend. This is unnecessarily restrictive. We have heard from many victims who were able to attend a parole hearing in person, but who found the experience so taxing that they could no longer recall all details of the hearing. These victims should also be afforded access to the audio recordings.

Considering and Protecting Victims

• During court and parole hearings, victims want opportunities to have their views heard and considered, particularly in relation to safety and security concerns. This speaks to victims participatory rights.
• The Victims Bill of Rights states that every victim has the right to convey their views about decisions to be made by the appropriate authorities in the criminal justice system that affects the victim’s rights, and to have those views considered.
• The Victims Bill of Rights provides victims with the additional right have their safety concerns considered at bail hearings. While this provides victims with increased rights to participate, the Bill does not provide victims with a mechanism to convey their views and to have them considered by the court.
• The Victims Bill of Rights also provides measures to help ensure that victims are informed of a plea bargain in cases of serious personal injury offences or murder.
• Informing victims of a plea bargain is helpful in some respects; however, victims have clearly identified the need to have their views considered before a plea is entered and/or accepted by the court.
• This is not to suggest victims should have any veto powers over plea bargains; rather it would ensure that victims can exercise their right to convey their views prior to decisions being made by appropriate authorities in the criminal justice system.
• The Victims Bill of Rights provides measures to enhance the safety and security for victims at trials including protecting victim information and identity during trial and testimony; allowing testimonial aids such a support person; and allowing the victim to read a statement outside of the courtroom.
• Similar considerations should be applied to ensure the safety and security of the victim at parole hearings. Presently, victims are not guaranteed separate and secure waiting areas to avoid contact with the offender at parole hearings.
• I recommend that appropriate measures be established in order to protect the victim’s sense of safety when attending parole hearings, such as safe and separate waiting areas.

Supporting Victims

• With respect to supporting victims, the Victims Bill of Rights would require judges to consider making a restitution order in all cases.
• Where victims do not receive their full restitution, they would need to go through civil court to have the remaining amounts paid.
• Restitution is part of the offender’s sentence. The onus should not be with the victim to take steps to collect the money owed to them.
• I recommend that a collection mechanism be in place that would alleviate the responsibility for the victim to pursue outstanding restitution payments.

Enforcement of Victims’ Rights

• In terms of enforcement, the Victims Bill of Rights requires each federal department or agency in the criminal justice system to have a complaint process for dealing with breaches of rights. Where victims are not satisfied with the result of these complaint processes, they may file their complaint with an authority that can review complaints in relation to that department or agency.
• Our recommendations to strengthen the Victims Bill of Rights speak to two approaches to enforcing either participatory or service rights. These two approaches differ based on the nature of the right and the point of the process where it applies: time of crime; court; or corrections and condition release or parole.
• Under the Bill, where victims have exhausted their recourse under a federal complaints mechanism, and are not satisfied with the response, they can file a complaint with any authority that has jurisdiction to review complaints.
• I recommend that any federal authority with jurisdiction to review complaints has investigative powers to compel federal government departments and agencies to produce information and documents relevant to a complaint, and to recommend remedies on specific complaints as well as systemic issues.
• I would also recommend that victims should have access to legal representation to address the court in order to exercise or enforce their participatory rights under the Victims Bill of Rights.
• Legal representation for victims is already allowed in determining access to the personal records of victims in cases of sexual assault. This does not mean that victims have “party status” but rather that victims would have the ability to address the court only on matters directly related to the rights in this Bill.
• Some may argue that this would delay the courts and hinder the process of a fair and equitable trial, but I have not found evidence of this in other jurisdictions where victims have access to legal representation to address the courts, as is the case in several States in the United States.
• Providing victims with a mechanism to address the court would help ensure that the process fairly considers and protects everyone’s interests. Treating victims fairly and ensuring their meaningful participation is critical to increasing public confidence in the criminal justice system, and improving the system’s overall effectiveness.

Conclusion

• In conclusion, I believe Bill C-32 is a positive step forward for victims of crime in this country.
• The Bill contains a number of measures that will help improve the system for victims of crime and help to ensure that they are informed, considered, protected, and supported.
• At the same time, many of the measures contained could be further strengthened to ensure that victims are treated fairly throughout the criminal justice process.
• With the implementation of this Bill, I encourage the Government of Canada to work with the provinces and territories in establishing appropriate evaluation mechanisms to ensure that victims of crime are better protected and have a stronger voice in our justice system.
• Thank you for your time, and I welcome any questions you may have.