Elimination of the “faint-hope clause”
Under section 745(6) of the Criminal Code of Canada, commonly known as the “faint-hope clause,” offenders serving life sentences could apply, after 15 years’ incarceration, to the provincial Chief Justice to become eligible for parole before the nominal 25 years.
Over the years, there has been considerable public and Parliamentary debate about the merits and drawbacks of early eligibility for parole, mainly focused on issues of recidivism, rehabilitation, and the effect on prison morale and the safety of guards. However, the clause also has an effect on victims, as an application for early eligibility could result in a judicial review of the offence, the offender’s character and conduct in prison, and the impact of the offence on victims. Such a review would force victims to relive their experiences much earlier than they expected, and live in fear that the offender might be reintroduced to the community before sufficient time had passed.
In 2010, the Senate reintroduced legislation (Bill S-6, An Act to Amend the Criminal Code and Another Act or “Serious Time for Serious Crime”) to eliminate the faint-hope clause for all offenders convicted since the Bill came into force. Offenders sentenced before the legislation would come into force remain eligible for faint-hope review under a revised process.
On November 18, 2010, Ombudsman Sue O’Sullivan appeared before the House of Commons Standing Committee on Justice and Human Rights, and expressed general support for Bill S-6, noting that she based her support specifically on the effect of the Bill on victims, and that she had spoken with a number of victim-advocacy groups about the issue. The elimination of the faint-hope clause would, in her view, help reduce the trauma for victims.
However, she also noted that victims were not necessarily aware of the faint-hope clause or that it might be applied, nor of its impact. With the caveat that notification was a provincial responsibility, she stressed that “all victims deserve to be kept informed and to play a meaningful role in the criminal justice system, should they wish to.” Victims, she observed, also deserved more certainty in the notification of when, or whether, an offender is to re-apply through the faint-hope clause. Eliminating the clause would therefore be more compassionate to victims. For cases in which the conviction preceded the passage of the Bill, where offenders would remain eligible for faint-hope review, she recommended that victims be notified when the offender does not apply and that the period of eligibility to re-apply be extended to at least five years.
Protection of the children of accused serious offenders
In October 2009, Member of Parliament Scott Andrews put forward Bill C-464, (An Act to Amend the Criminal Code (Justification for Detention in Custody)), which would amend the Criminal Code of Canada to allow judges to consider the safety of an accused’s children when deciding whether to grant bail. This bill was reinstated in March 2010. While the Code did have provisions for the safety of victims in this consideration, there were not explicit provisions for the accused’s children.
On November 24, 2010, the Ombudsman appeared before the Standing Senate Committee on Legal and Constitutional Affairs, expressing her support for the Bill, as the amendments to the Criminal Code would allow for increased consideration and protection for the accused’s minor children until the accused is tried in a court of law.
Ending sentence discounts for multiple murders
While murderers usually serve long prison terms, those who commit more than one murder often do little or no additional time, because of judges’ discretion in granting concurrent sentences. In some cases, victims felt that through this system additional offences were “free” to the offender, and had concerns that potential and actual murderers might view these offences the same way.
Victims felt a further effect of concurrent sentencing. The lack of additional time made many family members of murder victims feel that the loss of their loved ones was not “worth” any additional time to the justice system. Finally, concurrent sentencing could lead to earlier eligibility for parole, drawing the families into the issues surrounding the offence much earlier than they might have expected.
In October 2010, the Government introduced Bill C-48 (An Act to amend the Criminal Code and to make consequential amendments to the National Defence Act, or the Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act), which would provide judges with the discretion to order consecutive rather than concurrent parole-ineligibility periods.
The Ombudsman appeared before two Parliamentary committees to discuss Bill C-48: on December 2, 2010, before the Standing Committee on Justice and Human Rights; and on March 2, 2011, before the Standing Senate Committee on Legal and Constitutional Affairs. She expressed support for the Bill, stating that it responded to two concerns that victims had raised repeatedly: the need for accountability to each life taken; and the anxiety and emotional toll that victims face when an offender is granted a parole hearing.
She also recommended that the Bill be amended so that victims would be given the explicit right to the reasons that a judge has given for his or her decision as to whether to impose consecutive sentences.
Guidelines for victim statements
Many victims may find writing or recording a victim statement both traumatic and intimidating, because they have to relive their experiences in relation to the offence, and detail them for an official and sometimes public audience. Their apprehension is compounded by the fact that many are new to the process and are still learning what their rights are. As a result, some victims may find their statements being redacted or rejected because of unexpected circumstances, such as when an offender withdraws and re-submits an application for parole (see Case 2).
Having received a number of complaints from victims about this process, the Ombudsman reviewed the provisions of the Parole Board of Canada Guidelines and Policy Manual that apply to victim statements. She concluded that victims would benefit from more detailed instructions on creating their statements and information on the statement review process by Parole Board members. On December 21, 2010, she wrote to the Chairperson of the PBC, Harvey Cenaiko, advising him of this recommendation.
Federal Victim Surcharge
First enacted in 1988, the Federal Victim Surcharge (FVS) is a monetary penalty imposed on offenders. It aims to provide financial support to provincial and territorial victim services, and a rational link between an offender’s crime and his or her accountability to the victim. Under section 737(5) of the Criminal Code, judges retain discretion to waive the surcharge for reasons of undue hardship, but if this discretion is exercised, the reasons for waiver must be outlined. Several studies have shown that this is not being applied as intended. The FVS is routinely waived and no reasons are given for the waiving. As a result, funds collected from the FVS remain lower than expected.
On January 6, 2011, the Ombudsman wrote to the Minister of Justice recommending that the FVS be doubled and that discretion for judges to waive the FVS be removed, rendering its imposition automatic in all cases. She also reminded the Government of its commitment, made in its March 2010 Speech from the Throne, to double the charge and “make the Victim Surcharge mandatory, to better fund victim services.”
Mandatory reporting of images of the sexual abuse of children
As the OFOVC detailed in its Every Image, Every Child special report, the Internet has facilitated the sexual abuse of children in alarming ways, including a marked increase in both the number of sexualized images of children and in the degree of violence portrayed in those images. Yet Canada’s privacy laws present difficulties for law enforcement in tracking the producers, distributors and consumers of these images. Moreover, the complexity of data sources on the Internet—where a producer, distributor and consumer may all be in different countries, and the websites change locations frequently— makes the prosecution of the individuals responsible extremely challenging.
In May 2010, the Government introduced Bill C-22, commonly called the Protecting Children from Online Sexual Exploitation Act, which would create a mandatory reporting scheme for sexual abuse images. The responsibility for reporting would lie with the Internet service provider (ISP), whether a person or a corporation. If the ISP is advised of an Internet address where sexualized images of children may be available, the provider must report that address to the organization designated by the regulations in the Act. If the ISP has reasonable grounds to believe that their Internet services are being used to transmit such images, they must notify the police and preserve the data.
The Ombudsman appeared before the Standing Senate Committee on Legal and Constitutional Affairs on February 10, 2011, to voice her support for the Bill. She also highlighted the ongoing need to provide law enforcement with tools to investigate online child pornography, including the need for ISPs to be required by law to provide law enforcement agencies with client customer name and address information.
Missing persons index
Cases of missing persons can cause long-term anxiety and trauma to family and loved ones. In October 2006, the federal, provincial and territorial Ministers Responsible for Justice agreed in principle to the concept of a missing persons index (MPI), which would allow comparison of DNA samples to those of relatives and hopefully bring closure to the victim’s loved ones in many cases.
In June 2009, the Minister of Public Safety, then Peter Van Loan, responded to a recommendation by the former Ombudsman for the creation of a missing persons index, stating that a Parliamentary review of the DNA Identification Act was underway. In the same month, the House of Commons Standing Committee on Public Safety and National Security released a recommendation for the creation of such an index, along with a victim index.
On February 16, 2011, the Ombudsman committed her Office to monitoring the issue and she wrote to the Minister of Public Safety, Vic Toews, recommending that the development of an MPI and an index of unidentified human remains remain a priority, for the benefit of victims of crime. She also requested an update on the status of discussions with the provinces and territories related to their development.
Measures to protect victims of white-collar crime
A number of widely reported securities-related fraud cases, both in Canada and internationally, highlighted the idea that the increasing complexity of the world of finance presented too many opportunities for fraudulent individuals and corporations to take advantage of others. The impact was often devastating, and the measures for restitution to victims were considered weak.
In May 2010, the Government introduced Bill C-21, commonly known as the Standing Up for Victims of White Collar Crime Act. The Bill would amend the Criminal Code with measures such as:
- a two-year mandatory minimum sentence for fraud over $1 million;
- additional specified aggravating factors for the court’s consideration in sentencing;
- a new type of prohibition order;
- new obligations on the judge with respect to restitution orders; and
- a new type of impact statement to consider in sentencing.
On March 3, 2011, the Ombudsman appeared before the Standing Senate Committee on Legal and Constitutional Affairs, expressing support for the Bill. Specifically, she noted that many victims of financial crime were already vulnerable—such as the elderly—and she applauded the Bill’s recognition of their condition as an aggravating factor in sentencing. She also identified the requirement for judges to consider community impact statements as “a step forward for victims,” given the broad impact of many financial crimes. While supporting the Bill’s provisions for restitution, she argued that judges should generally be required to consider restitution for all types of crime, not only in cases of white-collar crime. She also recommended that the system of restitution be reviewed, with the aim of identifying alternatives to better support the financial needs of victims of crime.