In 2011, the House of Commons began to consider Private Member’s Bill C-350, An Act to Amend the Corrections and Conditional Release Act (Accountability of Offenders), which would require that any monetary awards that imprisoned offenders receive from legal action against the Government of Canada are allocated first to the offenders’ outstanding courtordered debts, on a pro-rated basis, in the following order of priority: child and spousal support; restitution; federal victim surcharge; and civil judgments.
In May 2012, the Ombudsman appeared before the Standing Committee on Public Safety and National Security to support Bill C-350. The Ombudsman also recommended that the proposed legislation be amended to include garnishing additional sources of funds available to imprisoned offenders, such as wages earned while incarcerated, GST rebates and employment insurance benefits. These funds would be used to pay offenders’ outstanding court-ordered debts.
The Senate of Canada referred Bill C-350 to committee in March 2013.
Introduced in the House of Commons in September 2012 as Bill C-44, An Act to Amend the Canada Labour Code and the Employment Insurance Act and to Make Consequential Amendments to the Income Tax Act and the Income Tax Regulations (Helping Families in Need Act), the Government proposed to provide employment protection and unpaid leave to parents coping with the death or disappearance of a child. At present, victims of crime have no access to employment insurance benefits related to the particular circumstance of victimization.
The Ombudsman appeared before standing committees of both the House of Commons and Senate in support of Bill C-44 and recommended the following amendments: that the Canada Labour Code be amended to be more inclusive to victims of crime, to include provisions for employment leave for spouses and siblings, in addition to parents; that employment insurance be available to victims following criminal victimization; and that alternative income supports be available if victims of crime are not eligible for employment insurance.
Bill C-44 received Royal Assent in December 2012, without any amendments.
In March 2012, the Government of Canada introduced Bill C-36, An Act to Amend the Criminal Code (elder abuse), also known as the Protecting Canada’s Seniors Act. The legislation proposed to add the victim’s age and personal circumstances, such as health and financial situation, to the list of aggravating factors that a judge must consider when determining an appropriate sentence.
In December, the Ombudsman provided a written submission to the Standing Senate Committee on Legal and Constitutional Affairs in support of Bill C-36. In the submission, the Ombudsman pointed out that elder abuse is often not reported to police and called for further action: “The OFOVC urges Parliamentarians to consider issues of elder abuse from a broader perspective and work towards ensuring Canada has the tools not only to effectively respond to elder abuse through sentencing, but to promote awareness and prevent it from occurring in the first place.”
Bill C-36 received Royal Assent in December 2012.
When an offender is being considered not only for a transfer, but also for an escorted temporary absence or a work release, registered victims are often dissatisfied about the lack of opportunity to participate in the decision-making process, and the lack of attention paid to their needs. Victims of crime should have the opportunity to have their voices heard, and have their concerns taken into account in advance of a decision to transfer or release an offender. Victims may have specific concerns related to transfers, escorted temporary absences and work releases, such as: destination of release, security classification and supervision of the offender.
The OFOVC has received several complaints regarding this issue. While reviewing a complaint, the OFOVC examined one of the CSC policies, specifically, Commissioner’s Directive 784 (CD 784) Information Sharing Between Victims and Correctional Service of Canada, which outlines how information is shared between CSC officials and victims. Part of this policy outlines the responsibilities of the parole officer in considering victims’ needs when preparing the file used in transfer and release decision making.
The OFOVC concluded that CD 784 could be strengthened by including a requirement for contact between parole officers and victim service units in advance of a decision to transfer or release an offender. This requirement would help ensure that all the relevant victim information about the offender and/or victims’ personal safety is taken into account in the decision-making process.
In August 2012, the Ombudsman wrote to the Commissioner of the CSC to recommend that the CSC review and amend Paragraph 11 of CD 784 to require that institutional parole officers contact Victim Service Units prior to preparing files for decisions about transfers, escorted temporary absences and work releases. This change would further enable the CSC to honour its commitment to the Canadian Statement of Basic Principles of Justice for Victims of Crime, which states that “the safety and security of victims should be considered at all stages of the criminal justice process…” and that “information should be provided to victims about the criminal justice system and the victim’s role and opportunities to participate in criminal justice processes.”
The Commissioner of CSC responded in writing to the Ombudsman’s letter in September 2012 offering the following commitment: “…I will request that the appropriate staff review CD 784 with a view to recommending any amendments that could strengthen CSC’s ability to benefit from information provided by registered victims as part of its decisionmaking processes.” The OFOVC looks forward to learning the outcome of the review of this policy.
The OFOVC has heard from many victims who are concerned about their safety when offenders are released into the community. During the review of a complaint, the OFOVC found that the mandatory conditions of release that an offender must follow, as outlined in the Corrections and Conditional Release Regulations (CCRR), fail to adequately consider and reflect the safety concerns of victims.
The regulations describe a number of specific conditions that must be imposed on all offenders in the community under conditional release, such as:
- obeying the law and keeping the peace;
- reporting any changes in address for employment; and
- not possessing any weapons, etc.
In addition to these mandatory conditions, it is not uncommon for the PBC to impose special conditions on a discretionary basis to prohibit contact between victims and offenders, when released. However, these are not mandatory conditions that the PBC is required to impose in all cases.
In February 2013, the Ombudsman wrote to the Minister of Public Safety and Emergency Preparedness to recommend that the regulations be modified to include a condition that offenders have no direct or indirect contact with the victim and/or members of their family. This would further ensure that the safety concerns of victims of crime are considered.
In addition to this recommendation, the Ombudsman identified that this condition may not be appropriate in all situations, and also recommended that victims, should they wish to maintain contact with the offender, have the option to request to the PBC that the offender be relieved of the no-contact condition.
The Minister had not responded to the Ombudsman’s letter prior to April 1, 2013.
“Thank you for your time, patience and support over the past week.” – An OFOVC client
In February 2012, the OFOVC published Shifting the Conversation, a report on the current state of victims’ issues in Canada. The report made a series of recommendations for legislative amendments and policy improvements to ensure that the criminal justice system treats victims in a more equitable and supportive fashion. The recommendations triggered a number of changes.
Federal Victim Surcharge
Shifting the Conversation recommended that the federal victim surcharge be doubled and made mandatory in all cases. These recommendations were included in Bill C-37, Increasing Offenders’ Accountability for Victims Act. The Ombudsman appeared before standing committees of the House of Commons and Senate in support of the proposed legislation. The Bill had reached second reading in the Senate and was referred to committee on March 5, 2013.
Victims Accessing Information about an Offender’s Participation in Correctional Programming
Shifting the Conversation recommended that registered victims be granted the right to receive, at a minimum, annual updates about an offender’s progress while under the supervision of the CSC or PBC. Under Bill C-10, An Act to enact the Justice for Victims of Terrorism Act, and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and Other Acts, also known as the Safe Streets and Communities Act, which came into force in 2012, registered victims can now access, upon request, information about an offender’s participation in correctional programs and about convictions for serious disciplinary offences committed by the offender while incarcerated.
In Shifting the Conversation, the Ombudsman encouraged the Government of Canada to consider her recommendations and to develop an Omnibus Victims’ Bill for Canada. In February 2013, the Government announced it would develop a Victims Bill of Rights that would entrench rights for victims of crime in law. At the end of the period covered by this report, public consultations on the Bill were underway.
In January 2013, the Ombudsman provided a written update to the Minister of Public Safety and Emergency Preparedness on recent efforts to create a national Missing Persons Index (MPI). The Ombudsman outlined significant developments on the issue, including a 2012 resolution by the Canadian Association of Chiefs of Police calling on the Government of Canada to establish a National Missing Persons Unidentified Human Remains DNA Index, and the development by the Royal Canadian Mounted Police of a best practices definition of missing persons.
The Minister of Public Safety’s response to the Ombudsman’s update included the following: “…while current legislation does not allow for the creation of an MPI or Unidentified Remains Index within the National DNA Databank, significant steps have been taken to ensure that law enforcement has the necessary tools to investigate missing persons cases. Please rest assured that this Government takes this issue seriously, and remains committed to working with partners to ensure the safety of Canadians.”
The OFOVC continues to push for the creation of a DNA Missing Persons Index.
In response to the Ombudsman’s recommendation made in the previous fiscal year, the Chairperson of the PBC promised to establish better guidelines for the presentation of victim statements. In a letter to the Ombudsman in October 2012, the Chairperson advised that the PBC had created three new fact sheets—Presenting a Statement, Recording a Statement and Statement Checklist—that will help victims who wish to present a victim statement at parole hearings.
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.” In October 2012, the Ombudsman received a letter from Chairperson Harvey Cenaiko of the PBC advising that a new set of fact sheets for victims had been created, including a new Elder Assisted Hearings fact sheet. According to the letter, “the Elder Assisted Hearings fact sheet will help victims attending such hearings better understand the process, and responds to issues you have also raised with the Board in the past.”
The OFOVC received a complaint from a victim about his experience attending a parole hearing for the man who had murdered his father. The victim expressed that he 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.
The Ombudsman recommended that the CSC and PBC review the measures in place to address and respect victims’ needs in these circumstances. The CSC Commissioner notified the OFOVC that the CSC would be establishing guiding principles to better accommodate the needs of victims at parole hearings. An excerpt of the letter said: “I am confident that we will succeed in improving the experience that victims have when they participate in parole hearings held at CSC operational sites.” The OFOVC provided feedback to a draft of the CSC’s guiding principles and looks forward to the final version.
Canadian law restricts access to medical or therapeutic counselling, and other personal records during prosecutions of sexual offences. The law is designed to address victims’ reluctance to report sexual offences because they do not want to be forced to reveal intimate details about their personal lives. Ultimately, the law strives to balance the rights of the accused and the complainant. A Senate committee began a statutory review of the legislation in 2011 and the Ombudsman made a series of recommendations to the committee. The committee’s final report, published in December 2012, reflected three of the Ombudsman’s recommendations:
- That the Government of Canada support qualitative and quantitative research into the effectiveness of the records production scheme under the Criminal Code, the crime of sexual assault more generally and the adequacy of existing support services and justice sector responses;
- That the Government of Canada explore the feasibility of studying the adequacy of data relating to victims of sexual offences in connection with sexual offence proceedings, as well as exploring the under-reporting of crime (lack of complaints) brought by victims; and
- That the Government of Canada consider reviewing and amending the Criminal Code to require the judge to inform the complainant of his or her entitlement to independent counsel during sections 278.4(1) and 278.6(2) of the Criminal Code.
“I am so heartened to know…that our voices are being brought to the table of decision makers.” – An OFOVC client