Annual Report (2011-2012): Pushing for Change
More Information for Registered Victims Through The Safe Streets and Communities Act
On September 20, 2011, the Government of Canada introduced Bill C-10, commonly called the Safe Streets and Communities Act, as part of its commitment to reform the criminal justice system. Part 3 of the Safe Streets and Communities Act, which put forward several amendments to the Corrections and Conditional Release Act (CCRA), came into force on June 13, 2012.
On October 18, 2011, the Ombudsman appeared before the Standing Committee on Justice and Human Rights to voice support for amendments to the CCRA, such as removing an offender’s right to cancel within 14 days of a parole hearing. She also offered recommendations for further amendments to better respect the rights and meet the needs of victims of crime:
- While Bill C-10 would grant victims the right to present statements at parole hearings, she recommended that victims have 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.
- As a corollary, victims should have the opportunity to listen to recordings of hearings or, where possible, to attend or observe the proceedings in person, by videoconference, teleconference or other remote, real-time technology.
- In recognition of the difficulties and emotional strain that victims face in preparing for and attending hearings, the time between hearings for those serving life and indeterminate sentences should be extended to five years.
- A registered victim should be able to request that a new hearing be conducted if he or she did not receive proper advance notification of the hearing.
- To help victims better plan for their own safety, and for their own peace of mind, they should be given advance notice, whenever possible, of any transfers of the offender to another institution, especially a lower-security institution, along with the reasons for the transfer.
- While the Ombudsman voiced support for some provisions in Part 3 of Bill C-10 which allowed for more information to be made available to victims—including an offender’s participation in correctional programming, convictions for serious disciplinary offences and reasons for temporary absences—she noted that the release of such information currently remains at the discretion of CSC. The Ombudsman recommended that the release of this information should be made automatic, except in cases where it may threaten the safety of an offender, individual or institution.
- Conversely, the Bill did not contain provisions to allow registered victims to see a photo of their offender, which would also help them plan for their safety; the Ombudsman recommended that CSC be allowed to show such a photo, at their discretion.
- Finally, to increase offenders’ accountability to their victims, CSC should be authorized to deduct reasonable amounts from an offender’s earnings to satisfy any outstanding restitution orders. The Ombudsman also appeared before, and provided a written submission to, the Standing Senate Committee on Legal and Constitutional Affairs on February 8, 2012, in relation to the same bill. The Ombudsman reiterated the same recommendations.
Bill C-10 was not amended to reflect the Ombudsman’s recommendations before receiving royal assent on March 13, 2012. However, when the provisions related to the CCRA came into force on June 13, 2012, she issued a statement reiterating her support, and noted that further measures, detailed in the Shifting the Conversation special report, could better meet the needs of victims of crime.
Long Gun Registry
In October 2011, the Government introduced Bill C-19, commonly called the Ending the Long-gun Registry Act. The bill would amend the Criminal Code of Canada and the Firearms Act to abolish the requirement for registration of all non-restricted firearms (long guns) with the Canadian Firearms Registry by 2013. The bill would also require the destruction of data collected through the registry of long guns.
“Thank you so much for forwarding my e-mail to a Complaint Review Officer. She phoned me and was very helpful even though I’m not in her jurisdiction. I appreciate the way you handled my cry for help and I thank you from the bottom of my heart.”
— An OFOVC client
The Ombudsman provided a written submission to the Standing Committee on Public Safety and National Security in November 2011. In her submission, the Ombudsman recommended against the passage of Bill C-19, citing the registry’s “demonstrated effectiveness in reducing long-gun related homicides” and that it “continues to be a valuable tool in assisting law enforcement in reducing victimization and keeping our communities safer.” She also noted that, among the victims and victim-serving agencies she had spoken to, a clear majority had expressed support for maintaining the long-gun registry. She reiterated these points and her recommendation in her appearance before the Standing Senate Committee on Legal and Constitutional Affairs on March 15, 2012.
Bill C-19 passed, receiving royal assent on April 5, 2012, ending the long-gun registry.
Production of Records in Sexual-Offence Proceedings
In 1997, a series of amendments to the Criminal Code came into force, restricting access to medical, counselling, therapeutic and other personal records of complainants in sexual-offence prosecutions. These amendments, brought about by Bill C-46 (Production of Records in Sexual Offence Proceedings), were aimed at client addressing victims’ reluctance to report sexual offences or testify as witnesses, for fear of having their personal information revealed; and their reluctance to seek counselling or treatment after a sexual assault. The legislation set out a process intended to balance the rights of the accused and the complainant. Some of the requirements of the process were:
- that the accused must establish that the records contain information that is likely relevant to an issue at trial or to the competence of a witness to testify;
- that the trial judge must also consider factors such as reasonable expectations of privacy, and the Charter rights of the complainant and the accused;
- that, if these measures warrant release of the records, they are first released only to the trial judge, who reviews them with the same considerations. In 2011, the Senate Standing Committee on Legal and Constitutional Affairs undertook a statutory review of the provisions, as required in section 3.1(2) of Bill C-46.
“I just wanted to take this time to thank you for your hard work on this. I think you have done an awesome job and I feel really good that you did this and for helping me out.”
— Voice message from an OFOVC client
As part of this review, the Ombudsman provided a written submission to the Committee on December 5, 2011, recommending that the personal and therapeutic records of complainants of sexual offences not be disclosed to thedefence. The submission highlights the systemic under-reporting of sexual offences, and cites the possibility of very personal information being divulged to the defence—and potentially to the alleged offender and the public.
While recognizing that a total restriction on disclosure might in effect violate the Charter rights of the accused, the Ombudsman recommended an approach that balances the rights of the complainant and the accused. She recommended that, in cases where disclosure is deemed necessary:
- complainants in sexual-offence proceedings be given increased access to legal representation;
- there be more detailed and specific education and direction for the judiciary as to the intent of the disclosure scheme put in place by Bill C-46; and
- comprehensive research on the functioning of Bill C-46 and the under-reporting of sexual assault be conducted.
As of the drafting of this report, the study remains in progress.
Improving the Efficiency of Large and Complex Trials
Growing awareness of the challenges of trials involving many defendants, large numbers of witnesses and complex evidence—notably those related to terrorism or organized crime—led to the Government’s introduction of Bill C-2 (the Fair and Efficient Criminal Trials Act) in June 2011. The procedural requirements of such “mega-trials” can involve lengthy delays, leading to the risk of mistrial, with several high-profile examples being widely reported in the news media. Less attention was given to the effect on the victims, who must endure long waits and great uncertainty during the trial period. Also, because of the large number of defendants involved, many of whom may expect to avoid conviction, victims and witnesses may also face increased risk of threats.
The amendments to the Criminal Code put forward in Bill C-2 aimed at expediting large-scale criminal trials. These included:
- the appointment of a Case Management Judge, who would be empowered to rule on some preliminary issues on which the remainder of the trial rests;
- reducing duplication of processes, for example, by allowing joint hearings on some issues common to several cases within a given trial; and
- improving procedure, notably including the swearing in of additional jurors and increased protection of their identities.
On June 21, 2011, the Ombudsman provided a written submission to the Standing Senate Committee on Legal and Constitutional Affairs, outlining her support for the passage of the bill, specifying that “increasing the efficiency of criminal procedure in mega-trials will help to ensure that the accused is tried within a reasonable amount of time, reducing the risk of Charter challenges from the accused. Moreover, increasing efficiency may result in a lessened emotional toll for victims who must endure the trial process.”
Bill C-2 passed, receiving royal assent on June 26, 2011.
Enhanching Consideration of Victims Where Offenders Are "Not Criminally Responsible"
A great deal of media and public attention has been paid recently to offenders found not criminally responsible for their crimes because of mental disorder. The victim still suffers the effects of the crime—but might not be entitled to the same supports and information as they would be if the offender had been found criminally responsible.
The OFOVC has on many occasions spoken with victims and victim advocates who have brought forward such concerns. Through these discussions, the OFOVC has identified several significant gaps in legislation, policy and programming that carry negative impacts both for the victims directly and, more broadly, for public safety.
These discrepancies have drawn considerable public attention in recent years, and many victims and victim advocates have brought related concerns to the attention of the OFOVC. By discussing these concerns with them, the Office has identified several significant gaps in legislation, policy and programming that affect both the victims and the public at large.
In a letter to Minister of Justice Rob Nicholson, dated June 6, 2011, the Ombudsman recommended that the Government of Canada review section 16 of the Criminal Code with an overall goal of responding to victims’ needs and improving public safety. She
recommended that the reviewers consider the option that review boards, for the purposes of making decisions on offenders’ absences and releases from psychiatric hospitals:
- give paramount consideration to public safety;
- ensure that at least two psychiatric opinions are obtained; and
- ensure that an inquiry is made into the whereabouts of the victims of the offence before making any release recommendations.
She also recommended that the Government identify and eliminate differences in the funding and services provided to victims whose offenders are found not criminally responsible, versus those whose offenders are found criminally responsible. Such a review could consider:
- the provision of federal funding for victims to attend provincial or territorial review board hearings, as is available for victims to attend PBC hearings; and
- notification to victims about the transfer, release or other status changes of the offender through the review board system, as is currently available for victims whose offenders are involved in the federal corrections system.
The OFOVC received a letter of response from Minister Nicholson, to the effect that work is currently underway at the federal-provincial-territorial level to examine principles of public safety in decisions made by review boards. The OFOVC will continue to work for change on this issue.
Considering Victims' Needs While Attending Parole Hearings
The OFOVC received a complaint from a victim about his experience of attending a parole hearing of the man who had murdered his father.
Parole hearings are operated by the PBC, but are held within the premises of institutions operated by the CSC. The victim had felt highly uncomfortable as he encountered the offender while proceeding to the hearing room, was required to walk past members of the offender’s family to access the washroom facilities and could be seen by the offender while waiting to go into the hearing room.
After reviewing the complaint, the Ombudsman recommended on March 16, 2012, that the CSC and the PBC review the measures that are currently in place to address and respect victims’ needs in these circumstances, and to consider what measures could be taken to improve the experience of victims at future Parole Board hearings.
On April 3, 2012, the OFOVC received a letter from CSC Commissioner Don Head, stating that “I am committed to following up with the Chairperson of the PBC in order to review measures that are currently in place and developing guiding principles that would assist our staff in dealing with victim considerations at hearings.” The OFOVC also received a letter from PBC Chairperson Harvey Cenaiko on April 26, 2012, stating that “my staff have been in contact with CSC to discuss the issues that you have raised and we are exploring ways in which our organizations can implement measures to improve processes at hearings.”
“The motto of the Office, ‘Victims first,’ acknowledges that the Offi ce exists, above all, to support victims of crime, to listen, and to learn more about their needs and how we can help. By making victims our priority, we can ensure that victims are treated with the respect and dignity they deserve.”
— Ombudsman O’Sullivan, at a presentation to the Ontario Criminal Injuries Compensation Board, April 2011
More Information For Victims About Elder-Assisted Hearings
The PBC first introduced Elder-assisted parole hearings in 1992 to provide an environment that facilitates a culturally sensitive hearing process for Aboriginal offenders. In this environment, an Elder is available to the offender to offer wisdom, guidance and (if necessary) translation; he or she also guides the Board members in matters of the culture and traditions of the offender. Though Elder-assisted hearings are aimed at meeting the needs of Aboriginal offenders, any offender may opt for the process.
The OFOVC received a complaint from a victim whose offender had chosen to have an Elder-assisted Parole Board hearing. In this case, the victim was not prepared for the different roles and procedures of an Elder-assisted hearing and felt inadequately prepared for several unexpected elements in a situation that was already stressful enough.
The OFOVC reviewed the existing policy and fact sheets that the PBC provides victims about Elder-assisted hearings and found that victims would benefit from more detailed information about the process. The OFOVC found that the fact sheets did not clarify that a non-Aboriginaloffender could apply for an Elder-assisted hearing; nor did they provide relevant timelines, or mention that such a request could be made after the offender’s initial application for parole. As a result, the OFOVC found that victims would benefit from more specific information related to Elder-assisted hearings, in terms of who is eligible and what to expect.
On February 9, 2012, the Ombudsman recommended in a letter that the PBC “increase the level and detail of information for victims related to PBC Elder-assisted hearings.”
“Victims are more than bystanders in the criminal justice system; we must empower them to play a stronger role. Canada must demonstrate its commitment to victims by ensuring they have the rights and entitlements they deserve to ensure fair and equitable treatment.”
— Ombudsman O’Sullivan, presenting at the March 2012 “Road to Resiliency” conference hosted by the Saskatchewan Association of Police Affiliated Victim Services
The OFOVC received a letter of response from PBC Chairperson Harvey Cenaiko, stating that, “given the unique nature of Elder Assisted Hearings, I agree that it would be beneficial for the Board to enhance the information it provides to victims surrounding these hearings. To this end, the Board will be developing a new fact sheet specific to Elder Assisted Hearings so that victims will have additional information and can better understand the use of these hearings by the Board.”
Notifying Victims of the Deportation Status of Federal Offenders
The process of deporting a person from Canada is often long and complex. Depending on the person’s legal status and the type of removal order, there can be numerous appeals and the case may be subject to several jurisdictions. In cases where the offender has committed an offence in Canada, victims often have no way to find out whether the offender has been removed from the country, is being detained by Canada Border Services Agency (CBSA) or is living unsupervised in Canada. This uncertainty can cause emotional stress for victims; conversely, a victim whose offender has been deported could be relieved of this stress if informed about the deportation. Several such victims have contacted the OFOVC.
On February 9, 2012, the Ombudsman met with CBSA officials to discuss victims’ needs for information when an offender may be, or is, removed from Canada. The Ombudsman then sent a follow-up letter to CBSA President Luc Portelance, reiterating her recommendation that victims be given the right to stay informed of an offender’s deportation status once the offender has been transferred to the custody of CBSA.
CBSA is currently examining the feasibility of providing registered victims with information on the detention and removal of federal offenders.
Updates On Recommendations Made In 2010
In 2011–2012, there was progress in relation to two of the recommendations that the OFOVC had made in the previous year.
Guidelines for victim statements
On December 21, 2010, the Ombudsman wrote to PBC Chairperson Harvey Cenaiko, advising him that victims would benefit from having more detailed instructions on how to write their victim impact statements as well as information on the processes by which the Parole Board reviews these statements. The PBC Chairperson assured the Ombudsman on February 7, 2011, that the issue was under discussion and was scheduled for review at the subsequent meeting of regional and national managers. He also committed to refining the Board’s guidelines and the fact sheet provided to victims who are presenting statements.
On June 9, 2011, the OFOVC received an update from the PBC Chairperson, stating that “plans are to have draft revised guidelines by fall 2011. The PBC will then revise the fact sheet that we provide to victims presenting statements at a hearing, and will update our website accordingly. We will also include these in our revised Guidelines for Regional Communications Officers. Please rest assured that a copy of the revised guidelines on videotaped victim statements will be shared with your office once completed.”
“Thank you so much for taking the time to talk to me and offer suggestions. It meant more to me than you realize. I met with my lawyer today and we’ve taken a step forward. I’ve also asked the police for protection. With luck, this might be resolved in a week or so.”
— An OFOVC client
On February 16, 2011, the Ombudsman wrote to Minister of Public Safety Vic Toews, recommending that the development of a missing-persons index (MPI) and an index of unidentified human remains be given a high priority, for the benefit of victims of crime. These databases would allow comparison of DNA samples to those of relatives and hopefully bring closure to the victim’s loved ones. The creation of an MPI would follow a 2006 agreement in principle by the federal, provincial and territorial Ministers Responsible for Justice, as well as a Parliamentary review of the DNA Identification Act, and a 2009 recommendation by the House of Commons Standing Committee on Public Safety and National Security for the creation of such an index. In her correspondence, the Ombudsman also requested an update on the status of the relevant discussions with the provinces and territories.
On August 9, 2011, the Ombudsman received a letter of response from the Minister of Public Safety, stating that the recommendations of the Standing Committee on Public Safety were accepted in principle, and that the Government was “consulting with stakeholders to develop consensus on how best to proceed.” Some considerations of these consultations included privacy issues, jurisdictional responsibilities and restrictions in the current legislation on creation of an additional index. He also noted that “my Department remains committed to working with its partners to ensure that law enforcement is provided with the best tools possible to ensure the safety of all Canadians.”
Special Report: Shifting The Conversation
The past few years have brought an ongoing debate over Canada’s criminal justice system into sharper focus—both in Parliament and around kitchen tables. And while this debate is healthy, the focus remains predominantly on offenders: the means of apprehending and trying them, the provisions for corrections and rehabilitation, and their rights. In the past, the needs and rights of victims have often been relegated to being side-issues—though just about any proposed change to the criminal justice system can have a considerable impact on victims.
The OFOVC’s mandate is to ensure that victims’ voices are heard in both the legislative and public debate. Drawing on four years of complaints and inquiries, a stakeholder survey, a growing body of statistics on victims’ concerns, and a variety of both Canadian and international studies on victims’ issues, the OFOVC authored a special report, Shifting the Conversation: A look at refocusing Canada’s justice system to better meet the needs of victims of crime.
The report makes recommendations to the federal government for amending laws and policies to ensure more equitable and supportive treatment of victims in the criminal justice system. The recommendations focus on three main areas:
- Information for victims—Victims need more information, not only to navigate the justice system and participate effectively in hearings, but also for their own safety and peace of mind.
- Meaningful participation by victims in the criminal justice system—Victims have an important role to play in the corrections and conditional release process. However, their opportunities to participate are sharply limited by current legislation.
- Tangible support for victims—The Federal Victim Surcharge, a monetary penalty paid by the offender to his or her victim(s), has been sporadically enforced since its establishment in 1988. Likewise, restitution (a discretionary order imposed by the court and paid by the offender to the victim) is often under-used and under-enforced, and many victims are not aware of the option.