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Submission to the Standing Committee on Justice and Human Rights: Bill C-54

INTRODUCTION

  • Bonjour, Monsieur le président et chers membres du Comité.
  • Thank you for inviting me here today to discuss Bill C-54 which seeks to enhance public safety and better meet the needs of victims in cases where an accused is determined to be not criminally responsible or NCR.

MANDATE

  • To begin, I would like to take the opportunity to provide a brief overview of our Office's mandate.
  • As you may know, the Office of the Federal Ombudsman for Victims of Crime was created in 2007 to provide a voice for victims at the federal level.
  • We do this through our mandate by:
    • receiving and reviewing complaints from victims;
    • promoting and facilitating access to federal programs and services for victims of crime by providing information and referrals;
    • by promoting the Basic Principles of Justice for Victims of Crime;
    • by raising awareness among criminal justice personnel and policy makers about the needs and concerns of victims, and
    • by identifying systemic and emerging issues that negatively impact on victims of crime.
  • The Office helps victims in two main ways: individually, and collectively.
  • We help victims individually by speaking with victims everyday, answering their questions, and addressing their complaints.
  • We help victims collectively by reviewing important issues and making recommendations to the Federal Government on how to improve its laws, policies or programs, to better support victims of crime.

VICTIMS' EXPERIENCE

  • I am pleased to be here today to bring a victims' perspective to this Bill, and I thank you for your part in wanting to ensure that victims voices are heard.
  • Our discussion today focuses on legislation specific to those found to be not criminally responsible for serious personal injury offences. Those that, in light of their mental condition, should not be held to account for the crimes they have committed.
  • It is important to keep in mind the distinction between a convicted offender and someone found to be NCR, and to ensure that those with mental illness are treated appropriately.
  • I believe strongly in increased supports to help those with mental illness in our communities and in the importance of support as prevention; helping to address these issues before they result in tragedy.
  • However, I also want to offer you another point to consider throughout your study of this Bill.
  • Following any violent crime, regardless of whether the accused is found to be not criminally responsible or a convicted offender, the trauma a victim experiences is, in all cases, devastating.
  • Regardless of the mental condition of an accused, victims' needs must be met and their treatment and rights should be equitable.
  • We know that all victims will need:
    • to be treated with respect;
    • to be informed of how the process works and their role within it;
    • to have their needs and input be considered; and
    • to be protected from intimidation or harm

NCR – OFOVC RECOMMENDATIONS

  • My Office has, on several occasions, spoken with victims and victim advocates who have brought their concerns regarding this issue to our attention. Through these discussions, we have identified several significant gaps in legislation and policy which ultimately carry negative impacts on both the victims directly and, more broadly, on public safety.
  • Two years ago, in June 2011, I wrote to the Minister of Justice recommending certain reforms in not criminally responsible cases, in order to ensure that the needs of victims of crime met.
  • These recommendations related to two items:
    • The importance of considering both victim and public safety in all release decisions
    • The lack of rights, policies and support in place for victims of NCR cases.
  • In terms of public safety, my Office recommended that Review Boards:
    • Give paramount consideration to public safety;
    • Ensure that an inquiry is made about the whereabouts of the victims of the offence before making any release recommendations.
  • With respect to the consideration of the victims, we recommended:
    • The provision of funding for victims to attend Review Board hearings
    • The implementation of notifications for victims regarding the transfer, release or other status change of the accused, as is currently available in the federal corrections system.

BILL C-54

Position on the Bill

  • I am encouraged to see that Bill C-54 addresses a number of our recommendations and I strongly support those proposed changes.
  • Specifically I am pleased to see, and strongly support, the prioritization of public safety as the paramount consideration for court and Review Board decision-making and the increased information provided to victims.
  • In addition to these elements, Bill C-54 also makes additional changes by proposing a "high-risk" designation that could be applied to accused persons who meet certain criteria.
  • Given that this particular section of the Bill pertains to the effective management of those determined to be not criminally responsible, which falls outside of the scope of the expertise of my office, I will limit my remarks to the elements of the Bill that specifically relate to victims.

Public Safety

  • Bill C-54 proposes to ensure that public safety is the paramount consideration in the decision-making process for not criminally responsible cases.
  • I think that to most Canadians, considering the safety of the public just makes sense.
  • Public safety is, without a doubt, an issue of concern for all victims.
  • Many, if not most of the victims I talk to, tell me that above all else, they don't want what happened to them to happen to anyone else.
  • This increased emphasis on public safety will provide assurance to victims that their safety is being considered in decisions and may help to further reduce victimization.

Victims Safety

  • Bill C-54 also proposes measures specific to victim safety, namely that the court and the Review Board consider whether it is desirable in the interests of the safety and security of any person, particularly a victim or witness, to impose a non-communication order or to require that the accused refrain from going to particular locations.
  • While the option for non-communication orders already exists, mandating the requirement to consider this option puts a specific and important emphasis on the consideration of a victims' needs and safety.

Victim treatment

  • Bill C-54 also proposes that victims who request it, be notified of conditional or absolute discharges.
  • This change helps to enhance victims' treatment in the system by increasing their access to information, which may further contribute to their sense of safety.
  • I support these measures entirely.

Recommendations to further strengthen the Bill

  • As I mentioned at the beginning of my remarks, regardless of the mental state of the accused, victims have certain basic needs – the need to be informed of the process and their rights within it, and the need to have their safety considered.
  • Providing victims with information about the accused's progress and release into the community can significantly increase a victims' sense of safety and may increase their confidence that the accused is accessing supports to promote and maintain their mental health.
  • This information may also help victims to:
    • address general feelings of anxiety and isolation that come from finding themselves in an unknown and unfamiliar system
    • prepare up-to-date, relevant victim statements for Review Board hearings; and
    • plan for their safety
  • Additionally, having this type of information may help victims on their healing journey. Experts state that "in addition to the victim's need to feel safe, information about the offender's treatment plan and movement within the correctional system may promote the psychological healing of some victims, and may directly increase victim satisfaction with the justice process."1 Though we must be careful to note that this relates to victims where an offender is sentenced and moves through the criminal justice process, it's not difficult to imagine how the same types of information could also assist victims in NCR cases.
  • Despite these benefits, victims in NCR cases have significantly fewer entitlements to information than those whose offenders move through the corrections and conditional release system.
  • To address this gap, I recommend that Bill C-54 be further enhanced to ultimately provide victims in NCR cases with similar rights to victims in the criminal justice system.
  • Please note that all of the recommendations I will provide should apply only in cases where it does not pose a safety risk to the accused, the facility or an individual and only in cases where the victim requests the information.
  • Specifically, I recommend the following rights be added to the Bill:
    • that victims be advised of the location of the forensic facility where the accused is detained
    • that victims be given advance notice of any scheduled absence, either escorted or unescorted, from the hospital and the general destination (the city or town) to which the accused will be travelling
    • that victims be given advance notice of the destination of release or conditional discharge, or if the accused will be travelling to the vicinity of the victims on conditional discharge
    • that the victims be informed of any conditions of release for the accused when they are conditionally discharged into the community. This may include such things as: mandated medication or treatment, non-communication with children or others, the requirement to attend treatment sessions, general mobility restrictions and more.
    • That victims be given advance notice of any scheduled transfer to another facility, of a change in level of security of their ward, or if the accused is moved to another province/territory for the purposes of treatment.
  • In addition to these measures, I also recommend that, upon request:
    • victims be given a chance to view – but not retain – a photo of the accused at the time of release;
    • victims be notified when there are additional or increased restrictions on liberties placed on the accused – such as when the accused is brought back into the facility or has been transferred from a minimum to medium or maximum security unit; and that
    • victims be notified when non-communication orders are put in place.
  • Finally, though it relates to the administration of justice and is therefore provincial, I would also submit for consideration the need to ensure that these rights are implemented effectively and that there are clear roles and processes in place in each province or territory to ensure victims receive the notifications they are entitled to.
  • Following information requested and provided by the Department of Justice's Policy Centre for Victims Issues, our Office became aware that not all provinces and territories necessarily have a system in place to ensure victim notification.
  • Without these systems in place to ensure that victims are, in fact, being notified, a codified right to notification becomes notional.

CONCLUSION

  • In conclusion, I strongly support Bill C-54's proposal to ensure that public safety is the paramount consideration in decision-making related to release of an accused, and the inclusion of further measures to enhance victims' rights.
  • With the addition of the further measures recommended, I believe that Bill C-54 will help ensure more equitable rights for victims of crime in cases where an accused is found to be not criminally responsible.
  • All victims of crime deserve to be informed, considered and protected, regardless of the mental state of the person who harmed them.
  • Thank you for the opportunity to bring a victim perspective to the study of this Bill and for your consideration of the recommendations I have provided today to further strengthen this proposed legislation.
  • I will be happy to take any questions you may have.

  1. 1. Alexander, Ellen K., and Harris Lord, Janice. "Impact Statements: A Victim's Right to Speak, A Nation's responsibility to listen." 1994. Accessed at: https://www.ncjrs.gov/ovc_archives/reports/impact/welcome.html (return to Footnote 1)