Remarks to the Standing Senate Committee on Legal and Constitutional Affairs on Bill C-40
November 7, 2024
Bonjour à tous et merci de m’accueillir aujourd’hui.
We are on the unceded, unsurrendered territory of the Algonquin Anishinaabeg people who have cared for this land since time immemorial. I am grateful for the wisdom and generosity of Indigenous friends and leaders who continue to model living in a good way and embody reconciliation.
First Nations, Inuit and Métis communities continue to experience miscarriages of justice rooted in colonial violence and patriarchy and are overrepresented in the criminal justice system. Addressing miscarriages of justice is an imperative step for the Government of Canada towards reconciliation, and a fitting way to honour the legacy of former Senator Murray Sinclair.
Our Office operates at arm’s length from Justice Canada. We help victims of crime resolve complaints with federal agencies and we raise systemic issues with policymakers. As Federal Ombudsperson, I help the Government respect its obligations under the Canadian Victims Bill of Rights, which is a quasi-constitutional law in Canada.
I support this legislation. A reform of Canada’s criminal conviction review process is overdue. We know that wrongful convictions disproportionally impact people who are Indigenous, Black, Racialized, and people from marginalized communities. I think the Commission’s expanded mandate to look beyond individual cases and explore systemic issues is a critical way to advance justice.
It’s also clear that wrongful convictions are a miscarriage of justice for victims of crime. Victims and survivors experience complex trauma reactions that can include:
- guilt or stigma for their participation in the justice system
- safety concerns if the person who harmed them remains unknown
- a privacy breach by the state for those who have shared intimate details about their trauma in victim statements
- loss of privacy in the media
- the risk of civil litigation for defamation
- feelings of betrayal when convictions are dismissed on a technicality
- PTSD and painful memories if asked to participate in a new trial
- Lost income from time off work (and)
- Gaps in victim services since survivors are no longer eligible to receive compensation for counselling. This is an area where the federal government consistently fails survivors of the most violent crimes in Canada. Most provincial compensation funds only cover limited sessions from 1-3 years. That means survivors who participate in parole hearings or federal programs years after a violent offence don’t always have access to help.
The Commission will be subject to the Canadian Victims Bill of Rights. Justices Laforme and Westmorland-Traoré agreed with our former Ombud, that victims of crime have rights to information, protection, and participation that must be upheld, and that a Commission on Miscarriages of Justice should also address the ways the justice system has failed victims.Footnote 1 Bill C-40 requires the Commission to establish policies to communicate with victims but falls short on the rights to protection and participation.
Under the Canadian Victims Bill of Rights, the Commission will be required to have a complaints process for victims of crime. If a victim is not satisfied with the response, they can file a complaint with our Office, also to be set out in the legislation. We would like to collaborate with the Commission as they develop their policies for victims to reduce common barriers and minimize harm.
Recommendations
Here are some recommendations:
- Ensure the Commission has legislated authority to disclose information to victims.Bill C-40 may require a coordinating amendment with section 26 of the Corrections and Conditional Release Act (CCRA).
- When the Commission notifies an applicant it will conduct an investigation, notify the victim as well. [Section 696.5 (2)]
- If an applicant is released from custody pending a hearing, ask victims if they have safety concerns.Footnote 2
- Notify victims who are not registered to receive information if there is an appeal that may overturn a conviction.Footnote 3 The length of a sentence can influence the choice to register. Withholding new information further erodes trust.
- Expand the authorities in section 696.84 (2) to authorize the Commission to provide support to victims “without means” as well as applicants in need. This could include compensation for counselling or limited Independent Legal Advice (ILA).
Miscarriages of Justice create an ethical obligation for the state to address harms to victims of crime and those who are wrongfully convicted.