Government Response to the 2013-2014 Annual Report of the Office of the Federal Ombudsman for Victims of Crime
I am pleased to release the Government Response to the 2013-2014 Annual Report of the Office of the Federal Ombudsman for Victims of Crime.
This is a historic time in Canada as the Government of Canada takes an important step forward to recognize victims' rights in the criminal justice system. In April 2014, our Government tabled Bill C-32, the Victims Bill of Rights Act that includes the proposed Canadian Victims Bill of Rights. The Canadian Victims Bill of Rights would entrench victims' rights into one piece of federal legislation. I am extremely proud of this piece of legislation and the work our Government has done to improve the justice system to better meet the needs of victims and their families. I believe the Canadian Victims Bill of Rights will help to restore Canadians' confidence in their justice system.
We have consistently promoted victims' access to justice and participation in the criminal justice system and have allocated more than $120 million to programs and services that benefit victims of crime since 2006. I am gratified to know that the Federal Ombudsman recognizes and values our continued efforts to improve federal services and programs for victims of crime.
The Federal Victims Strategy
The Government is committed to responding to the needs of victims of crime. The Federal Victims Strategy (Strategy) is a government initiative led by the Department of Justice and includes the Public Prosecution Service of Canada, the Department of Public Safety and Emergency Preparedness and its agencies, the Correctional Service of Canada, and the Parole Board of Canada.
The objective of the Strategy is to give victims a more effective voice in the criminal justice and corrections systems. The Strategy includes funds for the Office of the Federal Ombudsman for Victims of Crime as well as various programs at the Department of Justice, the Parole Board of Canada, the Public Prosecution Service of Canada, and the Correctional Service of Canada.
On April 3, 2014, the Government solidified its commitment to victims of crime by introducing the proposed Victims Bill of Rights Act. Once enacted, this piece of federal legislation will give victims the rights to information, protection, participation, restitution, and recourse if these rights have been infringed. It will transform the criminal justice system and further demonstrates the Government's commitment to addressing the concerns of victims of crime.
Victims Bill of Rights
The Ombudsman’s Report provides the following on page 14:
“The development of a fulsome, encompassing, enforceable Victims Bill of Rights would mark a significant step forward for victims of crime in Canada. Beyond simply balancing the scales, providing victims with real enforceable rights would serve to strengthen the system overall. Whereas failing to recognize and act upon the needs of victims can result in victims’ withdrawal from cooperation in the justice system—thereby undermining the system’s effectiveness— improved responsiveness to the needs of victims of crime will enhance the effectiveness of, and public confidence in, the criminal justice system.”
Response – Justice Canada
The Speech from the Throne delivered on October 16, 2013, committed the Government to introduce a Canadian Victims Bill of Rights (CVBR) to build on the Government’s significant initiatives since 2006 towards providing victims of crime with a more effective voice in the criminal justice system.
The Department of Justice held an online public consultation from May to September 2013 on the creation of a CVBR. More than 500 individuals and groups contributed to the consultation, including victims and victim advocates, criminal justice professionals, and concerned Canadians. The consultations followed the Government's commitment in February 2013 to entrench the rights of victims of crime at the federal level by bringing forward legislation to implement a CVBR. In-person consultations were held in Whitehorse, Iqaluit, Montréal, Québec, Ottawa, St. John’s, Halifax, Charlottetown, Winnipeg, Saskatoon, London, Toronto, Moncton, Yellowknife, Edmonton, and Vancouver.
Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts, was greatly informed by these consultations. The Bill was introduced on April 3, 2014, and was studied by the Standing Committee on Justice and Human Rights and adopted with amendments. It was further considered by the Senate Committee on Legal and Constitutional Affairs and was passed by the Senate. The Canadian Victims Bill of Rights as well as the amendments to the Criminal Code, Canada Evidence Act and Employment Insurance Act will come into force on July 23, 2015.
The CVBR will create statutory rights to information, protection, participation, and restitution for victims of crime at the federal level. It also proposes to create a complaint process to address alleged breaches of those rights by federal departments who provide services to victims of crime. The Bill strikes the appropriate balance between the rights of the victims and the accused and extends rights to victims at every stage of the criminal justice process, from the beginning of the investigation to the consideration of conditional release.
Many of Canada’s leading victim advocates, including the Ombudsman, have expressed clear support for this proposal to create enforceable rights for victims. The Government is committed to the successful implementation of this historic legislation in the coming months and years.
RESPONSES TO RECOMMENDATIONS IN THE REPORT
Victim's Role in the Not Criminally Responsible System: Bill C-14 (Formerly C-54)
The Ombudsman's Report provides the following on page 14:
On February 8, 2013 the Government of Canada introduced An Act to amend the Criminal Code and the National Defence Act (Mental Disorder), also known as the Not Criminally Responsible Reform Act. The Bill sought to make three changes to the not criminally responsible system:
Make public safety the paramount consideration;
Create a high-risk designation; and
Enhance victims' involvement in the mental health regime.
The Ombudsman appeared before the Standing Committee on Justice and Human Rights on June 12, 2013, and made several recommendations to strengthen the Bill. In particular, the Ombudsman called for authorities to inform victims and their families of relevant information, such as where the accused is detained, when and where they might be released from custody for treatment or other reasons, and whether any communications orders or other release restrictions are in place.
Bill C-54 was reintroduced as Bill C-14 and remained before Parliament as of March 31, 2014. On March 27, the Committee issued its report with observations.
Government Response - Justice Canada
Bill C-14, the Not Criminally Responsible Reform Act, came into force on July 12, 2014. This legislation strengthens the Criminal Code's decision-making process relating to accused persons found not criminally responsible on account of mental disorder to make public safety the primary consideration, enhance victim safety, and provide victims with a stronger voice in the process.
The legislation also enhances the safety of victims by ensuring that they are specifically considered when decisions are being made about accused persons with a mental disorder; ensuring that victims are notified when such an accused is discharged and where they intend to reside, if the victims so desire; and allowing for non-communication orders between the accused and the victim.
Giving Victims a Larger Role in Parole Hearings: Bill C-479
The Ombudsman's Report provides the following on pages 14 and 15:
First introduced on February 27, 2013 and reinstated on October 16, 2013, An Act to amend the Corrections and Conditional Release Act (Fairness for Victims) would allow the Parole Board of Canada to increase the time between parole hearings, up to five years for violent offenders who have had parole denied, cancelled or terminated. It also would allow the Parole Board of Canada to increase the time between parole hearings to up to five years for violent offenders who have had parole denied, cancelled or terminated. The Bill also would allow the cancellation of hearings if offenders repeatedly refuse or waive their right to attend hearings. It would provide registered victims with more information about conditional release. This would ensure that parole hearings give greater consideration to the needs of victims and their families, and provide them with transcripts of hearings free of charge, in cases where transcripts have been made.
On February 13, 2014, the Ombudsman appeared before the House of Commons Standing Committee on Public Safety and National Security, and made several recommendations. In particular, the Ombudsman recommended that all information currently listed in the CCRA as discretionary be provided to victims automatically, unless there is a credible reason not to do so. The Ombudsman also recommended that victims be given choices and options about how to attend and participate in a parole hearing, and that victims and their families have access, free of charge, to audio and video records of parole hearings, since transcripts are not usually provided.
The Standing Committee's report was tabled in the House of Commons in March 2014.
Government Response - Parole Board of Canada
Bill C-479, An Act to amend the Corrections and Conditional Release Act (Fairness for Victims) sponsored by David Sweet (Ancaster-Dundas-Flamborough-Westdale) received Royal Assent on April 23, 2015.
Bill C-479 amended Part II of the Corrections and Conditional Release Act (CCRA) to:
a) Increase the period within which the Parole Board of Canada (PBC) must provide a further review of parole, following a denial of parole, from two years to five years; conduct reviews following cancellation or termination of parole from two years to four years, and after that date, from two years to five years for federal offenders convicted of an offence involving violence;
b) Increase the period within which the PBC must provide a further review of statutory release for offenders convicted of an offence involving violence and are subject to a detention order from one year to two years;
c) Provide the PBC with the authority to cancel the next review hearing for an offender who has refused to attend or has waived a parole hearing on more than one occasion;
d) Authorize disclosure, at the request of the victim, of the date, destination and conditions regarding an offender's conditional release by the PBC if, in the opinion of the Chairperson, such disclosure clearly does not negatively impact the safety of the public;
e) Authorize the discretionary disclosure of information to victims regarding an offender's Correctional Plan and progress towards the Plan;
f) Emphasize that in cases where victims or a victim's family member is not permitted to attend a hearing in person, the PBC shall provide for them a means, considered appropriate by the PBC, to observe the hearing;
g) Provide for victims, victims' families, and offenders to receive transcripts of hearings, if they are made, free of charge. However, specify that transcripts provided to victims or their families would not include portions of the hearing where observers were asked to leave the hearing.
h) Allow for specific alternate media to accompany written impact statements;
i) Emphasize that the PBC must give consideration to the involvement of victims and their families in hearings as observers, and that the PBC must consider victim impact statements; and
j) Impose a timeframe for the PBC to inform victims of an offender's release, as well as impose a duty to update victims of any changes to previously released information.
In addition, Bill C-32, the Victims Bill of Rights Act, also received Royal Assent on April 23, 2015, and amends the CCRA to allow a victim who was unable to attend a parole hearing to listen to an audio recording of the proceedings. This gives victims options for accessing parole hearing proceedings if they are unable to attend in person. As well, Bill C-32 amended Part I of the CCRA to authorize the Correctional Service of Canada (CSC) to disclose, at the request of the victim, the date, destination and conditions regarding an offender's conditional release, which mirrors the authority provided to PBC in Bill C-479.
Escorted Temporary Absence: Bill C-483
The Ombudsman's Report provides the following on page 15:
A Private Member's Bill, introduced on March 8, 2013, sought to amend the Corrections and Conditional Release Act (CCRA) to limit the authority of wardens in granting escorted temporary absences (ETA) to offenders convicted of first or second degree murder. The Parole Board of Canada would have exclusive authority over ETA decisions for these offenders.
On March 25, 2014, the Ombudsman appeared before the House of Commons Standing Committee on Public Safety and National Security, and made a series of recommendations. The Ombudsman recommended that all victims of offenders currently in the federal system— regardless of the decision-making authority— should have access to, and be able to participate in, a conditional release system that better informs, considers, protects and supports them. Specifically, victims should:
- Be informed in advance of hearings and have the option to apply to attend;
- Be able to present a statement at hearings;
- Be informed of the offender's progress and rehabilitation;
- Be provided the opportunity to update their impact statement and any other relevant information;
- Have access to some form of decision summary; and
- Be offered funding supports to help cover some of the expenses associated with attending hearings.
By March 31, 2014, the Standing Committee had not yet completed its review of the legislation.
Government Response - Public Safety (Corrections Policy)
The CCRA currently provides the authority for victims to be informed of an offender's program participation and to be notified in advance of Parole Board hearings so they may attend and, if they choose, present a statement at hearings. Victims may also access financial assistance for themselves and a support person to attend a hearing, through the Victims fund administered by the Department of Justice.
Our Government recognizes the concern held by some victims' families in regard to the decision-making authority of wardens to grant offenders serving life sentences escorted temporary absences (ETAs) for specific rehabilitative reasons, such as to participate in community service programs, re-establish family contact, including parental responsibilities, or for personal development.
The Bill C-483, sponsored by Dave MacKenzie (Oxford), An Act to Amend the Corrections and Conditional Release Act (Escorted Temporary Absence) received Royal Assent on December 16, 2014. This Act gives the PBC the authority to grant ETAs to inmates serving minimum life sentences until such time that a rehabilitative ETA (e.g., community service) is granted to an inmate who has passed day parole eligibility. If such a rehabilitative ETA is successfully completed, decision-making authority would transfer from the PBC to CSC. However, should a subsequent rehabilitative ETA authorized by CSC not be successfully completed (e.g., inmate breaches a condition), decision-making authority would revert back to the PBC. The amendments contained in Bill C-483 are consistent with the Government's commitment to ensure that the needs of victims and their families are considered when correctional officials make decisions about an offender's release.
Bill C-483 ensures that offenders serving minimum life sentences who have not been granted a rehabilitative ETA for the purpose of community service, family contact, personal development or parental responsibility (section 164 (2), Corrections and Conditional Release Regulations) before their day parole eligibility date would have a hearing conducted by the PBC for ETAs after their day parole eligibility and until they are granted and successfully complete a rehabilitative ETA. Registered victims would be notified in advance, so they may exercise their option to attend the hearing as an observer or to present a statement outlining any security concerns they may have and any adverse impacts they believe the ETA might have on them or on the safety of the public. Financial assistance for registered victims and their support people to attend PBC hearings can be accessed through the Victims Fund administered by Justice Canada.
In addition to the Bill C-483 amendments, previous amendments to the CCRA made in 2012 through the Safe Street and Communities Act allow for the disclosure of a summary of an offender's program participation. This would be further complemented by the amendments proposed through the Victims Bill of Rights Act, which would provide victims with information on the offender's progress toward meeting the objectives identified in their Correctional Plan, as well as access to PBC decision summaries. Finally, Bill C-479 provides for victims, victims' families, and offenders to receive transcripts of hearings, if they are made, free of charge, excluding portions of the hearing where observers were asked to leave the hearing.
Protecting Victims after Offenders are Released from Custody: Bill C-489
The Ombudsman's Report provides the following on pages 15 and 16:
Introduced as a Private Member's Bill on April 18, 2013, An Act to Amend the Criminal Code and the Corrections and Conditional Release Act (Restrictions on Offenders) proposed mandatory conditions that would restrict an offender from having direct or indirect contact with a victim, witness or others, or refrain from going to certain designated areas. These conditions would be mandatory for a person on probation, conditional sentence, parole, statutory release or unescorted temporary absence. The condition would be mandatory, unless the judge or releasing authority identified extenuating circumstances that would make the condition inappropriate, or if a victim provides consent to contact with the offender.
On November 7, 2013, the Ombudsman appeared before the Standing Committee on Justice and Human Rights to express support for Bill C-489 and to suggest amendments that would strengthen it. The suggested amendments would expand the proposed provisions that prohibit offenders from contacting victims and witnesses, for instance, and better protect sensitive information of victims of crime, such as their work address.
Other recommendations included:
- That a judge or releasing authority have the option of imposing conditions on the offender to restrain from having contact with a victim, witness or other person and/or be able to impose a geographical restriction.
- The Bill should provide the option to impose either or both of these conditions rather than only one;
- That the restrictions of non-communication and refraining from going to specified places also apply to offenders on long-term supervision orders;
- That procedural safeguards are built into the Bill to protect the anonymity of the victim and their place of residence and work when a releasing authority or judge is imposing geographical restrictions as a condition of release; and
- That a clear administrative process is prescribed for victims who wish to maintain contact with offenders.
On November 18, 2013, the House of Commons Standing Committee on Justice and Human Rights presented its report in the House of Commons. As of March 31, 2014, the Bill had yet to be referred to a Senate Standing Committee.
Government Response - Public Safety (Corrections Policy)
Bill C-489 An Act to amend the Criminal Code and the Corrections and Conditional Release Act (Restrictions on Offenders), sponsored by Mark Warawa (Langley), received Royal Assent on June 19, 2014, and is now in force. This legislation amended section 161 of the Criminal Code to require a court to consider making an order prohibiting certain offenders from being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified resides or any other place specified. Furthermore, it amends subsection 732.1(2) (probation) to ensure that the offender abstains from communicating with any victim, witness or other person identified in a probation order, or refrains from going to any place specified in the order, except in accordance with certain conditions. Similar amendments were made to section 742.3 (conditional sentence orders) and subsection 810.1(3.02) (conditions of recognizance).
The enactment also amended section 133 of the CCRA to provide additional emphasis on victims' needs. The amended legislation provides that the releasing authority shall impose any conditions on the parole, statutory release or unescorted temporary absence of an offender that it considers reasonable and necessary in order to protect the victim, including non-contact conditions and geographic restrictions. Imposing such conditions does not require a victim to submit an impact statement, but consideration of these conditions would be mandatory if a victim has provided a statement regarding the harm done to them, the continuing impact of the offence, any safety concerns, or comments on the possible release of the offender.
In the event that the releasing authority does not impose geographic restrictions or victim non-contact conditions on the release of the offender, it must provide written reasons for this decision. Furthermore, Bill C-32, the Victims Bill of Rights Act, amended the CCRA to require the PBC to likewise impose on a long-term supervision order the same non-contact or geographic restrictions as were contemplated in Bill C-489.
The Ombudsman's Report provides the following on page 16:
In December 2013, the Supreme Court of Canada ruled that three Criminal Code prostitution offences were unconstitutional. The Court gave Parliament one year to respond before the judgment takes full effect. On February 17, 2014, the Government of Canada launched a one-month online consultation to seek input.
The OFOVC submitted a letter outlining the complex nature of prostitution as it relates to victimization. With reference to Canadian research and perspectives that individuals shared with the Ombudsman, the letter acknowledges that people become involved in the sex trade for various reasons and there are great discrepancies in how sex-trade workers identify themselves as victims. The OFOVC recognizes that, with the exceptions of human trafficking, exploitation and child prostitution, there is no simple formula to determine what should be criminalized in response to the Supreme Court's ruling. The OFOVC submission called for:
- Equal and unbiased safety protection for all Canadians, including those involved in the sex trade;
- Measures to offer protection to those forced into the sex trade; and
- Supports for the individuals who choose to exit the sex trade.
As of March 31 2014, no legislation had been introduced.
On June 16, 2014, the Government introduced Bill C-36, the Protection of Communities and Exploited Persons Act, in response to the 2013 Supreme Court of Canada decision in Canada (Attorney General) v. Bedford (Bedford). The Bill received Royal Assent on November 6, 2014, and came into force on December 6, 2014.
Bill C-36 reflects a fundamental paradigm shift toward the treatment of prostitution as a form of sexual exploitation that disproportionately and negatively impacts on women and children. These new legislative measures are aimed at reducing demand for sexual services, protecting those who sell those services from exploitation, and protecting communities and children from prostitution's harms, including violence, drug-related crime, organized crime and human trafficking. More specifically, the criminal law reforms on prostitution:
- Criminalize the purchase of sexual services;
- Continue to criminalize those who financially benefit from the exploitation of others through prostitution, such as pimps, and those who procure others for the purpose of prostitution;
- Prohibit advertising for the sale of others' sexual services in print or online;
- Immunize those who sell their own sexual services from criminal liability for any part they play in the purchasing, material benefit, procuring or advertising offences;
- Protect communities, and especially children, by criminalizing communicating for the purpose of selling sexual services in public places that are or are next to school grounds, playgrounds or day care centres, i.e., locations that are designed for use by children; and
- Increase existing penalties relating to child prostitution and child trafficking.
The development of Bill C-36 was informed by the evidence before the courts in Bedford as well as the decision itself; the public consultations conducted by the Government in February and March 2014; jurisprudence interpreting existing prostitution-related Criminal Code offences; research on prostitution in Canada including relevant Canadian Parliamentary reports; and international research on prostitution including relevant government reports from other jurisdictions.
This legislation treats sellers of sexual services as victims of sexual exploitation who need assistance in leaving prostitution and not punishment for the exploitation they have endured. The Government of Canada recognizes that entry into prostitution, and remaining in it, are both influenced by a variety of socio-economic factors and existing vulnerabilities such as poverty, homelessness, youth, child sexual abuse and other forms of child abuse, lack of education and skills, and drug or alcohol addictions. Accordingly, the Government has announced $20 million in new funding over the next five years to implement a range of social programming measures to assist sellers of sexual services who wish to leave prostitution, and enable those working on the front-lines to effectively address prostitution's harms. This new funding will complement other related federal initiatives including the National Action Plan to Combat Human Trafficking, the National Crime Prevention Strategy, the Victims Fund, the Aboriginal Justice Strategy and funding to address the issue of missing and murdered Aboriginal women.
Further information on Bill C-36 can be found in the Department of Justice's Technical Paper at: http://www.justice.gc.ca/eng/rp-pr/other-autre/protect/p1.html
Updates on Previous Recommendations
The Ombudsman provided updates on the following recommendations contained in previous reports:
Considering the needs of victims attending parole hearings (p. 17)
Contact with victims following the release of an offender (p. 17-18)
Consideration of victims' concerns in advance of decisions to transfer or release offenders (p. 18)
Videotaped victim statements at parole hearings (p. 19)
Government Response – Public Safety Canada, PBC and CSC
Public Safety Portfolio Agencies have worked collaboratively with the Office of the Ombudsman for Victims of Crime to resolve victim concerns outlined in the Case Studies presented in this report and to ensure that victims’ needs and concerns are given consideration when attending and presenting at parole hearings and in advance of decisions to release offenders, including temporary absences and work releases. Our government continues to engage victims, making sure they have a more effective voice in Canada’s corrections and conditional release system.
Addressing the needs of victims of crime and their families is a shared responsibility of governments across Canada, in addition to being a priority for the federal government. We continue to work closely with victims of crime and our partners in the provinces and territories, with law enforcement and other stakeholder groups to create a criminal justice system that meets the needs and expectations of Canadians, as demonstrated through the consultative processes on the Canadian Victims Bill of Rights and the Protection of Communities and Exploited Persons Act.
As Minister of Justice and Attorney General of Canada, I look forward to continuing to work effectively with the Federal Ombudsman in pursuing our joint objective of addressing the needs of victims of crime and their families.