The Participant Perspectives section provides an overview of what we heard from those who contributed either in person, in writing or by phone.

“Nobody takes responsibility for informing the victim about the accused being released; the ball gets dropped multiple times as everyone assumes that someone else is informing the victim.”

NEED TO CONSIDER VICTIMS CAREFULLY

• The current bail regime gives victims certain protections/rights with respect to having their safety and security considered, and having a copy of the bail release. However, no mechanism presently exists to ensure that a victim:
• has been consulted with respect to safety and security needs; and
• knows about their right to request a copy of the bail release order.
• There is currently no legal duty to automatically inform victims when an offender is released on bail. This means victims with legitimate concerns for their safety may not be made aware when the accused person is released and what conditions may or may not be in place.
• In some cases where the victim is notified, it can happen too close to release, causing high levels of stress and anxiety and reducing the capacity for effective safety planning.

FLEXIBILITY AND RESPONSIVENESS

• “There has to be room for victims to express what they need for safety without necessarily always defaulting to keeping people locked up.”
  • A lack of systemic responsiveness to the victim may mean fewer reported crimes. For example, in cases of interpersonal violence, not all victims want the accused in jail; they may be very fearful of other risks they and their children may face as a result (e.g., homelessness, poverty). If we want a system that can be trusted and used, there has to be more flexibility to adapt to individual circumstances and more supports in place for people.
• In domestic violence cases, involvement of the police or of other criminal justice system actors is a significant risk factor for escalating violence. Research indicates that the risk of violence (including lethal violence) is greatest when the victim is attempting to leave an abusive partner. It also shows that the rate of non-compliance with protective conditions is high.
  • Better awareness and training are required throughout the criminal justice system on the trauma bond between the victim and their offender, particularly in the context of domestic violence.
  • A victim who has returned to their abusive partner many times may not be taken seriously and may be seen as ‘crying wolf’ in relation to a complaint.
• Victims should have more input into what is considered threatening behaviour.
• “We need to understand the long term dynamics and how, (for) example, some behaviours actually mean something significant and are experienced as threatening. The victim knows that person very well. It’s listening to how they understand it because they understand it best…”
• There is a need to take into account an individual’s past convictions, particularly in cases of intimate partner violence.

This section suggestions options and makes recommendations to the federal government for how to address issues with Canada’s bail system. The recommendations provided were developed after carefully considering a variety of source material, such as: participant perspectives, the Office’s past work and experience, research, literature reviews and more.

ENHANCE SAFETY AND SECURITY MEASURES (CRIMINAL CODE)

• Add offences involving domestic or sexual violence to the list of “reverse onus” offences in section 515(6)(a) of the Criminal Code. At a minimum, the presumption of bail should be reversed where the accused has been previously charged with, or convicted of, offences involving domestic or sexual violence.
• Require prosecutors to consult with victims before bail hearings and then convey necessary details to the deciding judge and/or allow victims to submit information directly to the court. A straightforward document to record and submit evidence relating to the security and safety of victims or witnesses could be developed and piloted. These approaches would be consistent with existing victim rights in section 14 of the Canadian Victims Bill of Rights.
• Require that a judge/justice of the peace inquire as to whether a victim has been consulted about their safety and security requirements in making any bail decision or at a hearing where a request has been made to change bail conditions (could be based on current sections 672.5(15.2), 722(2), 737.1(2)).
• Require a judge/justice to inform any victim who is a witness at a bail hearing of the right to have their safety and security considered (albeit unusual for a victim to be a witness at a bail hearing). (Could be based on existing sections 486.4(2)(a), (2.2(a))).
• In situations where a person accused of a violent, sexual and/or domestic violence offence is released from custody, ensure that identifiable victims are contacted and provided with information pertaining to the timing of the release as well as any bail conditions relating to victim security and safety Could be applicable to sections 497(1), 498(1), 499(1) and 515(4)).
• Amend section 515(14) of the Criminal Code to provide clear responsibility to provide copies of bail orders, including release conditions, to identifiable victims of the offence so that victims are better positioned to make informed safety planning decisions, and seek protective victim services as needed.
• Have a notification requirement, if there is ever a request by an accused to change any bail conditions that have been put into place relating to the safety and security of a victim (Could be based on existing sections 672.5(13.2), 13.3)).
• Require that a victim be informed of their right to legal representation. (Could be based on current section 278.4(2.1)).
• Allow a victim or a victim’s representative to make submissions relating to safety and security measures (could be based on current section 278.4(2)).
• Provide an application process so that additional family members – and not just those set out in the CVBR – who may be affected by bail could come forward and apply to have rights to information in order to be able to be informed when bail conditions are set and when bail conditions are broken, and undertake safety planning as necessary.
• Retain sections like 497(1.1) and 498(1.1) (i.e., ensuring safety and security of any victim/witness).
• Allow a victim to initiate an application to change bail conditions, if safety and security measures need to be changed. (Could be based on current section 486.1(2), new provisions under 499, 503).

ENSHRINE RIGHTS IN THE CVBR

• Subsection 18(1)(a) of the CVBR could be amended to include bail amongst the interactions included in the investigation and prosecution on an offence.
• A new subsection could be added to section 8 of the CVBR, explicitly providing victims the right to information about bail proceedings and interim release conditions.

ENSURE THAT SUPPORTS AND INFORMATION ARE AVAILABLE TO VICTIMS

• Establish clear requirements that victims be provided with detailed and explanatory information related to their safety and security, with clear responsibility assigned to a single, reliably-available resource.¹¹

ENSURE THAT REMAND POLICIES AND PRACTICES ARE SAFE FOR VICTIMS AND WITNESSES

• Federal policies, regulations and practices could be strengthened to better ensure that the safety, security and well-being of victims serving as witnesses is not compromised (e.g. no transportation in the same vehicle as the accused person(s) charged with the offence). The federal government could champion this same principle in the development of applicable federal/provincial/territorial (or national) frameworks or standards.