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Safe at Home: Submission to the Standing Committee on Justice and Human Rights on Bill C-489

An Act to amend the Criminal Code and the Corrections and Conditional Release Act (restrictions on offenders)
Submitted by Sue O'Sullican, Federal Ombudsman for Victims of Crime
June 11, 2014

Office of the Federal Ombusman for Victimes of Crime

The Office of the Federal Ombudsman for Victims of Crime (OFOVC) is an independent resource for victims in Canada. The Office was created in 2007 to ensure the federal government meets its responsibilities to victims of crime.

Victims can contact the Office to learn more about their rights under federal law and the services available to them, or to make a complaint about any federal agency or federal legislation dealing with victims of crime. In addition to its direct work with victims, the Office also works to ensure that policy makers and other criminal justice personnel are aware of victims' needs and concerns and to identify important issues and trends that may negatively impact victims. Where appropriate, the Ombudsman may also make recommendations to the federal government.

Our mandate relates exclusively to matters of federal jurisdiction and enables the Office:

  • to promote access by victims to existing federal programs and services for victims;
  • to address complaints of victims about compliance with the provisions of the Corrections and Conditional Release Act  that apply to victims of crimes committed by offenders under federal jurisdiction;
  • to promote awareness of the needs and concerns of victims and the applicable laws that benefit victims of crime, including to promote the principles set out in the Canadian Statement of Basic Principles of Justice for Victims of Crime  with respect to matters of federal jurisdiction, among criminal justice personnel and policy makers;
  • to identify and review emerging and systemic issues, including those issues related to programs and services provided or administered by the Department of Justice or the Department of Public Safety and Emergency Preparedness, that impact negatively on victims of crime; and
  • to facilitate access by victims to existing federal programs and services by providing them with information and referrals.

This submission will examine Bill C-489, specifically the proposed amendments to the Criminal Code and the Corrections and Conditional Release Act. The submission will also identify recommendations for further amendments, with an overall goal of better meeting the needs of victims of crime.

Preface

In November 2013, the Federal Ombudsman for Victims of Crime testified before the Standing Committee on Justice and Human Rights on Bill C-489, An Act to amend the Criminal Code and the Corrections and Conditional Release Act (restrictions on offenders), at which time the Ombudsman made a number of recommendations to further strengthen the Bill. 

The Office the Federal Ombudsman for Victims of Crime (OFOVC) is pleased that certain subsequent changes to Bill C-489 directly addresses some recommendations put forward by the Ombudsman.  However, there remain a number of outstanding recommendations that would strengthen the effectiveness of the Bill in meeting victims' needs.  

The OFOVC provides this submission to Committee members and encourages the Committee to consider the recommendations contained within as amendments to Bill C-489. 

Summary of the OFOVC's Position

Bill C-489 seeks to amend the Criminal Code and the Corrections and Conditional Release Act (CCRA) to further protect child victims of sexual offences and to help ensure that victims are not re-traumatized through unwanted contact with their offender. 

In its work, the OFOVC often hears from victims who feel re-victimized by the system and who feel that their safety and concerns are neither considered nor addressed as part of important decisions relating to an offender’s management and release.

With this in mind, the OFOVC supports the intent of Bill C-489 and many of the measures included which seek to protect victims from unnecessary re-victimization, stress and trauma.

In relation to specific provisions, given the level of detail of this Bill and the many changes it seeks to make to the Criminal Code and CCRA,  this submission will focus only on the OFOVC’s recommendations which seek to further to strengthen the Bill.  The proposed recommendations are enumerated below.

Recommendations

Recommendation 1

  • That Bill C-489 be amended to its original form to allow victims who apply for a Recognizance Order for Threats of Sexual Offence Against a person under 16 (Criminal Code 810.1) to consent to communication with the person in the order. The original form of the Bill allowed flexibility for the victim to have their specific needs met.

Bill C-489 originally sought to amend the conditions imposed in this type of recognizance order to include a mandatory condition to refrain from communication with a victim, or any person specified in the order, or refrain from going to any location specified, unless the victim provided consent to communication

While the OFOVC is pleased to see that a condition to refrain from direct or indirect communication with the person specified in the order remains as a mandatory condition, the option of having a victim provide consent to communication was removed by the Standing Committee on Justice and Human Rights in November 2013.

According to the Canadian Families and Corrections Network, roughly 30% of registered victims choose to stay in contact with the offender who harmed them, this is especially true when the offender is a family member.  When one looks at victimization with an understanding that it often occurs within the family context, the importance of providing some flexibility for restorative opportunities is key.

While a recognizance order is based on agreement between two parties who do not wish to have contact, there may be cases where a victim, for example, may wish to offer the option of limited telephone communication between an accused parent who is actively seeking treatment and a child.  Victims should have these choices and options available to them.  As such, the OFOVC recommends that this be amended to return to victims the option of providing consent for communication in these cases. 

Recommendation 2

  • That the word “and” be included within the scope of a judges authority to impose a mandatory condition, so that the Bill would read “to refrain from having direct or indirect communication with the victim, and/or refrain from going to certain locations specified in the order, rather than restricting the conditions to one or the other”.  Limiting the condition to one “or” the other restricts an authority’s ability to order both conditions in situations that warrant the extra protective measures.

Recommendation 3

  • That the Parole Board of Canada or the Correctional Services Canada, in cases when the institutional head is the releasing authority, be empowered to impose a mandatory condition to refrain from having direct or indirect communication with the victim, and/or refrain from going to certain locations specified in the order, rather than restricting the conditions to one “or” the other.

As the Bill currently reads, the judge or releasing authority would only be able to restrict the offender from having direct or indirect communication with the victim or impose a geographical restriction. There is no option to impose both. The OFOVC feels that the Bill should provide the option to impose both of these conditions, when the case warrants it.

Knowing that an offender is subject to a mandatory condition to refrain from having direct or indirect contact with the victim or other persons specified in the order and that a judge or releasing authority shall consider imposing a geographical restriction would provide victims with more peace of mind knowing that it is mandatory for their safety to be considered when making this type of order.

Recommendation 4

  • Provide that the restrictions of having direct or indirect communication with a victim or refraining from going to specified places also apply to offenders on Long Term Supervision Orders and that the wording also be changed to permit the releasing authority to require the offender to “refrain from having direct or indirect communication with the victim, and/or refrain from going to certain locations specified in the order, rather than restricting the conditions to one or the other”.

It is important to note that Bill C-489 does not amend the conditions of a Long-Term Supervision Order to add an automatic non-communication order with the victim.

Long-term Supervision Orders apply to cases of sexually-based offences, including against children, and are a special order imposed to allow for some supervision, up to 10 years, following warrant expiry of an offender who is deemed feared to re-offend. Including Long-term Supervision Orders within the Bill would be consistent with the Bill’s intent and provide more thorough protection for victims.

Recommendation 5

  • That the Bill be amended to ensure procedural safeguards are in place to protect the anonymity of the victim and his or her place of residence, or work etc. when a releasing authority or judge is imposing a geographical restrictions as a condition of release.

Depending on the circumstances (ex: large city with small geographic restriction), a geographical limitation may provide an offender with some knowledge of the location of a victims’ residence.

When imposing this type of condition to protect victim safety, there must be safeguards to ensure that the condition does not inadvertently reveal information about the victim.

Recommendation 6

  • In cases of parole, statutory release and unescorted temporary absence, the Bill should be amended to make a non-communication order with victims a mandatory condition of release.  

In its original form, Bill C-489 sought to make non-communication orders or geographical restrictions mandatory conditions of parole, statutory release and unescorted temporary absence, unless the victim consented to communication. This provision was amended by the Standing Committee on Justice and Human Rights in November 2013 to make them optional conditions that could be imposed by the releasing authority if these conditions are considered reasonable and necessary to protect the victim. 

With regards to this aspect, the OFOVC would like to see the Bill returned to its original form. Through our work with victims, we are very keenly aware of the impact an offender’s release can have on a victim’s feeling of safety. We have had numerous cases of victims who had concerns regarding the proximity of the offender who harmed them and their own personal safety.

Recommendation 7

  • Should the Committee decide not to reinstate the provision making a non-communication order with victims a mandatory condition of release, the OFOVC recommends that the Bill be amended to ensure that:

    • victims be explicitly made aware of the opportunity to provide input regarding any safety concerns well in advance,
    • victims be provided a reasonable opportunity to share their concerns for consideration,
    • that victims be advised that this information shall be used to consider imposing further restrictions on the offender; and
    • if the releasing authority does not impose conditions to address security concerns outlined by victims in a statement, reasons for this decision must be communicated to the victim.   

As the Bill currently stands, the onus is on the victim to communicate concerns of safety and security to the releasing authority through updated victim statements in order for their concerns to be taken into account at release.

The onus should not be on the victim to communicate these concerns in the hopes that a condition will be imposed.  This provision would give victims some peace of mind of knowing their safety is automatically being taken into account without needing to rely on the releasing authority to impose the condition prohibiting communication and contact.

Further, in the case where a releasing authority, such as the Parole Board of Canada, releases an offender on parole or an unescorted temporary absence despite safety concerns raised by a victim, the reasons provided for “in writing” may not be discloseable to the victim.  For example, in the case of institutional heads as releasing authority, no information is ever disclosed to victims except for the final decision, once rendered. This reduces or restricts victims’ access to information about the offender who harmed them and their own personal safety.

The OFOVC recommends that releasing authorities should also be required to disclose to the victims the reasons for not imposing a non-communication order or geographic restrictions to victims in writing.

Conclusion

  • Victims have identified the need to be informed, considered, protected and supported as top priorities across Canada.

  • With this in mind, the OFOVC supports the intent and many aspects of Bill C-489 which seek to further reduce harm, re-victimization and trauma to victims by limiting communication and proximity to offenders.

  • That being said, the OFOVC has identified opportunities whereby the Bill could be further strengthened and has provided those recommendations to Members for their consideration within this document.

  • The Office thanks Members for their consideration of this important legislation and the recommendations provided.  We invite all Members to contact the Office with any further questions or concerns; we would be happy to assist you.