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Irwin Cotler, MP

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Debate on Bill C-32: Victims’ Bill of Rights

Posted on April 10, 2014 | No Comments

Hon. Irwin Cotler (Mount Royal, Lib.):

Mr. Speaker, I am pleased to have the opportunity to join this debate and address Bill C-32, the Victims Bill of Rights Act, which sets out a number of important rights for victims of crime, particularly with respect to information, participation, protection, and restitution.

For victims and their families, navigating the path of justice, from police services to the trial process to incarceration and parole, can be a very difficult ordeal, sometimes frightening and often costly. Victims may have experienced significant emotional or physical trauma as well as material loss, and most painfully, the loss of loved ones.

As such, it is critical that our justice system and related departments and agencies treat victims with respect and sensitivity, appreciate their concerns, and minimize their burden. To that end, the bill before us appears to be in most respects one more step in the right direction, and I commend the minister for this initiative.

I have certain concerns about aspects of the proposed legislation that I will discuss shortly, the substantive critique that the minister himself invited, but I am hopeful that these legislative aspects can be examined and, if need be, amended and refined at committee.

As I said, Bill C-32 is one more step because it builds upon past efforts across party lines, and as the minister mentioned, the initiatives by provinces, to improve the treatment of victims of crime within our justice system.

Indeed, the preamble of the bill references the Canadian statement of basic principles of justice for victims of crime, which was first endorsed by federal, provincial, and territorial ministers of justice in 1988 under a Progressive Conservative government, and updated and endorsed again under a Liberal government in 2003.

Shortly thereafter, as minister of justice, I was proud to introduce the Martin government’s very first bill, which increased protections for children and other vulnerable Canadians against exploitation and abuse. In particular, that legislation facilitated the testimony of child victims and other vulnerable witnesses by providing for the more widespread use of testimonial aids and support persons, which the minister referenced in his remarks today. In fact, the legislation before us builds upon many of the very provisions that were enacted or enhanced at that time.

I was also pleased to introduce Canada’s first ever legislation to specifically target human trafficking, the contemporary global slave trade with its multiply-affected victims. It is to the credit of this House that the battle to combat human trafficking and exploitation has been a multi-partisan effort. Indeed, the bill I introduced at the time passed unanimously, and in recent years I have been pleased to support efforts by the member for Kildonan—St. Paul and the member for Ahuntsic to build upon that initial legislation.

There was all-party support as well for a 2005 bill that enhanced the national DNA data bank by authorizing judges to order DNA samples from those convicted of a number of serious crimes, including child pornography and offences related to underage prostitution. The national DNA data bank was itself created by the Liberal government in 2000, and has proven to be a valuable crime-fighting tool that has helped to protect vulnerable Canadians and to bring to justice those who would do them harm.

As regards the role of victims within the justice process, as minister of justice, I joined with the hon. Anne McLellan, the then minister of public safety, to establish a national office for victims in order to coordinate federal initiatives for victims of crime and ensure that their perspectives would be considered in the development of policy and legislation, which is a principle and process enhanced by this victims bill of rights act. We also set up a fund to help cover travel and accommodation costs for victims attending parole board hearings.

Moreover, and again with the support of MPs on both sides of the aisle, we enacted important measures to improve the treatment of victims in cases where the accused was found not criminally responsible. Those measures included protecting the identity and privacy of victims, allowing for the oral presentation of victim impact statements, and permitting the adjournment of review board hearings if victims needed more time to prepare.

Therefore, as I have said, I am proud not only of my own party’s record when it comes to crime prevention and victims’ rights—and here I reference as well the restorative justice initiatives—but also of the many instances in the past when members of all parties joined together in a spirit of collaboration and good faith to advance these important objectives and ideals.

I note with regret that public safety and victims’ rights have sometimes been used as a wedge issue in an attempt to paint opponents of legislation that may have suspect constitutional policy grounds as being soft on crime or uncaring toward victims. Yet, victims are best served when we as parliamentarians focus on their interests rather than our own.

Many of the past bills to which I have referred were subject to thorough scrutiny and amendment at committee, a fact indicative not of the weakness of the legislation but the strength of the parliamentary process. I hope that the debate and study of Bill C-32 will likewise be open-minded and robust, as the minister appeared to invite.

In that vein, I will now turn to the legislation itself and to some of its aspects that merit further examination.

First, the bill would establish a number of victims’ rights, divided into the categories of information, protection, participation, and restitution. As I said, I fully support the idea of extending these important rights to victims of crime. Victims must clearly be made aware of the rights and resources at their disposal, and they must, if they so choose, be kept abreast of the justice process from the investigative phase to the potential ultimate release of the offender, and at every point in between.

As well, the security of victims must be a paramount consideration, including the protection of their right to privacy and protection from intimidation and retaliation. Victims themselves should be able to share their views with the appropriate authorities within the justice system and to have, as much as possible, a meaningful role throughout the justice process. Finally, victims should be able to seek restitution where appropriate.

These are important rights contained in the legislation, to which I am pleased to lend my support and my party’s support.

My concerns with respect to this section of the bill, and here I again relate to the minister’s invitation regarding substantive critiques, are related primarily to the degree to which these rights are, in fact, enforceable. It is one thing to proclaim that victims of crime have this panoply of rights, however important that in itself is, but it is quite another to give them concrete expression by devoting adequate financial and human resources and putting in place an effective organizational infrastructure for recourse and remedy.

For instance, a House of Commons subcommittee studying victims’ rights 14 years ago found that victims sometimes had difficulty contacting the right person within a government agency to access information to which they were entitled, and they occasionally received different or conflicting information from various sources within the same agency.

I mention this not to cast blame on any of the individuals who work at the Correctional Service , the Parole Board, or any other agencies that make up our justice system but to underscore the extent to which the resources in this system are already spread quite thin. As such, saying that a victim is entitled to information, protection, restitution, or a role in the process is important, and it cannot be underestimated. However, it is not the same as ensuring that they, in fact, get that.

Moreover, for rights to be meaningful, there must be appropriate recourse available in the event that they are infringed. However, the avenue for recourse as set out in Bill C-32 is merely a requirement that federal departments and agencies establish internal mechanisms to receive and review complaints and recommend remedial action. Again, it is not clear whether additional resources would be allocated to ensure that the complaint mechanisms would be effective, but neither is it clear what recourse, if any, victims would have if such internal complaint mechanisms did not resolve a situation to their satisfaction. This potential lack of recourse risks aggravating, rather than assuaging, the frustration of victims.

In short, having raised the expectations of victims of crime, the government is now responsible for meeting those expectations. I hope to hear more from the government, as the minister himself spoke today, about the concrete ways in which it intends to do so.

I will now move on to the Criminal Code amendments contained in this bill. For the most part, these amendments seek inter alia to protect the privacy and security of victims and witnesses, to specify certain information to which victims are entitled, and to enhance the role of victims in the justice process. All of these objectives, as I mentioned earlier, are ones that I share.

There are, however, several clauses in this section of the bill that merit thorough examination at committee so as to ensure that their consequences are fully and accurately understood. To begin with, the bill proposes quite a broad definition of “victim” in the Criminal Code. The minister referenced this definition in his remarks.

The new definition would go so far as to include, in certain circumstances, an individual, and I quote:

…who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an   offence against any other person.

I certainly understand the impulse to extend the protection and rights of Bill C-32 to as many Canadians as possible, but there may be a point at which a definition becomes so broad that it can be rendered unworkable. For example, if everyone who has suffered emotional harm because of an offence committed against any other person is entitled to make representations during sentencing proceedings or at a review board hearing, as provided for by this bill, might there not be a risk of overburdening the system and slowing down proceedings to the detriment of victims themselves? At the very least, when experts come before committee, this would be a question worth asking and clarifying.

Another element of Bill C-32 that should be carefully considered is the expanded access to publication bans with respect to court proceedings.

The safety and privacy of victims and witnesses are undoubtedly vital concerns. At the same time, requests for publication bans require resources to adjudicate and enforce. It is not evident that our justice system is presently equipped to deal with this change.

Again, to be clear, I do not mean to suggest that the change is problematic in and of itself, but we must investigate its implications and cost consequences and ensure that the government is prepared to make the necessary resource commitment.

Bill C-32 would also remove the protection of spousal privilege such that it would be possible to compel an individual to testify against his or her spouse. As the minister himself mentioned in his remarks, numerous exceptions to this privilege have existed in Canada for many years. This is, nevertheless, a long-standing legal principle, and it will be important to understand its operation and use to fully appreciate the impact, positive or negative, of its removal. Again, this would be a useful issue for committee deliberation.

Another possible area of concern regards the payment of restitution by an offender to a victim. In particular, the legislation would prohibit a court from considering an offender’s ability to pay when making a restitution order. This would be a significant concern in cases where the offender is impoverished and no work program is available to him or her while incarcerated, not least because the victim would be unlikely to receive the restitution that he or she has been awarded by the court.

This particular provision echoes the government’s unfortunate approach to the victim fine surcharge, whereby offenders are required to pay hundreds of dollars at sentencing, with no allowance made for those who simply do not have the money. Since the mandatory surcharge has come into force, judges across the country have had to find creative ways around it, such as allowing many years for repayment.

Bill C-32 would make an important change to the surcharge, requiring that it be paid either within a period determined by the province or in a reasonable time after its imposition. Yet what is “reasonable” may depend greatly upon the offender’s ability to pay. Indeed, to cite certain real-life cases from recent months, it is unclear what would be a reasonable period of time in which to expect a homeless Ottawa teenager or a drug-addicted refugee from Sierra Leone to raise hundreds of dollars.

The wording would likely lead to even more court cases on this front, all of which would cost taxpayers more than any amount they would receive from the payment of the surcharge.

Another aspect of Bill C-32 that must be carefully considered concerns the important changes to sentencing principles proposed in the bill, which the minister referenced in his remarks. For example, Bill C-32 would add the protection of society as a fundamental purpose of sentencing in the Criminal Code. Yet existing sentencing principles already include “the maintenance of a just, peaceful and safe society”. As such, it is unclear what the government is seeking to achieve with this seemingly redundant provision.

I hope that the justice committee will hear from criminal law experts about any possible effects of this change.

The bill would also add the denunciation of harm done to victims as a purpose of sentencing, an addition that raises similar questions, in particular how this denunciation would be achieved in a manner distinct from the denunciation of the conduct at issue and whether the impact of such a double denunciation would simply be to increase prison sentences across the board, regardless of whether such punishment fit the crime.

Finally, Bill C-32 would change the provision that underpins the Gladue principles of sentencing for aboriginal offenders. These principles currently require the courts to consider “all available sanctions other than imprisonment that are reasonable in the circumstances”, particularly with respect to aboriginal offenders, notably in recognition of the serious problem of the overrepresentation of aboriginal people in Canadian prisons.

Importantly, the Gladue principles do not automatically reduce an aboriginal offender’s sentence, nor do they permit aboriginal offenders to escape serious punishment for serious crimes. The principles have, however, been upheld by the Supreme Court as recently as 2012.

However, Bill C-32 would appear to limit the application of the Gladue principles by specifying that the sentence must be “consistent with the harm done to victims or to the community”.

At the very least, this raises questions about the extent to which a sentencing principle meant to facilitate rehabilitation should be marginalized in favour of a more punitive approach. It would certainly be appropriate for experts in aboriginal justice to testify at committee on this point.

Nevertheless, in spite of these areas of potential concern, I will support sending the bill to committee for further study.

As I said earlier, I hope that committee members will engage in that study with the seriousness and responsiveness the subject demands and that the government, as it appears to indicate, would be open to amendments.

Before I conclude, I will turn briefly to measures not included in the bill that could be as important, if not more so, when it comes to respecting victims of crime and to preventing Canadians from becoming victims in the first place.

In our focus on domestic victims of crime, we must not forget that there are Canadians impacted in serious ways by crimes that have occurred abroad. In this regard, I remain troubled by the government’s stance on state immunity. Thus far, it has acted to limit the number of state entities Canadians can sue for terror.

While I was pleased that the government adopted the Justice for Victims of Terrorism Act just a few short years ago, the government has only listed two states Canadians can sue. Even then, it did not initially seem disposed to helping Canadian victims get justice prior to American claimants seeking to enforce foreign judgments regarding Iran in Canada. There must be a more equitable process for victims than the current listing mechanism that places the entirety of its discretionary authority in the hands of the minister. While I will not dwell on this point, I do hope the government will reconsider its position on this issue. As well, I trust that the protection will be expanded to include not only victims of terror but also victims of torture, war crimes, and crimes against humanity, which I have referenced in a private member’s bill otherwise before this House.

Earlier I mentioned the importance of keeping Canadians from becoming victims of crime to begin with, the prevention principle. Regrettably, the government has not put sufficient emphasis on prevention in its approach both to victims’ rights and to public safety in general.

To reduce the incidence of crime, we must combat factors that we know are linked with crime, such as issues of poverty, addiction, and mental health. Efforts in this regard require significant resource commitments and a conception of public safety that goes beyond punitive measures.

This brings me to the final area of concern. Bill C-32 contains no provisions about data sharing and collection or about developing best practices and guidelines such that victims’ rights are understood in a way that is meaningful and consistent. It might be appropriate to require an annual report on the bill so that we know how many complaints are raised with respect to each right and how many are resolved to the victims’ satisfaction, while enhancing federal-provincial co-operation in this regard.

In closing, I am glad this legislation is before us. While I have some concerns regarding particular clauses, I will be voting in favour of the bill at second reading, and I encourage others to do the same. We all have a part to play in supporting victims of crime. While Bill C-32 could be stronger and more effective, and I trust that at the end of the process it will be, it is one more important step in the right direction.

Statement on National Victims of Crime Awareness Week

Posted on April 8, 2014 | No Comments

Hon. Irwin Cotler (Mount Royal, Lib.):

Mr. Speaker, I rise in this national victims of crime awareness week, wherein this year’s theme is “taking action” to ensure that the needs of victims are made a priority within the justice system.

While the government’s proposed victims bill of rights offers some useful additions to Canadian law, it does not yet sufficiently address the importance of prevention and remedy, and resource shortages.

This year, victims week coincides with the 20th anniversary of the Rwandan genocide. As Rwandans mourn their dead in painful silence and quiet dignity, the overarching message of Rwandan remembrance is not only the horror of the genocide, but also that the genocide was preventable, that it was the silence, the indifference, the inaction of the international community in the face of genocidal incitement and mass atrocity that made the Rwandan genocide possible.

Our focus on domestic victims must not ignore the victims of mass atrocity abroad, particularly given the mass carnage that is taking place in the Central African Republic today, with incendiary violence, mass atrocity, and the killing of 140,000 civilians in the last year alone.

Canada should take the lead in sounding the alarm, in acting on the responsibility to protect obligation, in responding to the United Nations’ urgent call for more blue helmets, and thereby to honour the legacy of Rwanda and the victims of genocide.

Statement by Irwin Cotler on Russian Travel Ban

Posted on March 24, 2014 | No Comments

“I wear my exclusion from Russia as a badge of honour and am proud to be in such distinguished company.

I have no intention of visiting Siberia. I have no investments in Sochi. I have no desire to visit Moscow and be poisoned as happened on my last trip.

Indeed, I was  first expelled from the Soviet Union and then banned in 1979 while advocating on behalf of political prisoners including Natan Sharansky. I was arrested and accused of consorting with “criminals,” among them the great Soviet human rights dissident, Andrei Sakharov. These acts did not stop my human rights advocacy. Indeed, today’s announcement only inspires me to redouble my efforts to advance the cause of human rights for all.

I stand in solidarity with the Russian people and those fighting for human rights and democracy. Their day will come and Putin will be no more.”

The Lessons of l’Affaire Nadon

Posted on March 21, 2014 | No Comments

In a rebuke of the latest Conservative government appointment to the nation’s highest court, the Supreme Court of Canada today declared, “The appointment of Justice Nadon […]

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Order Paper Question: Q-334

Posted on March 21, 2014 | No Comments

Q-3342 — March 20, 2014  — Mr. Cotler (Mount Royal) — With regard to bijuralism and harmonization: (a) what measures are in place to ensure legislative […]

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Order Paper Question: Q-333

Posted on March 21, 2014 | No Comments

Q-3332 — March 20, 2014  — Mr. Cotler (Mount Royal) — With regard to the government’s consultations about prostitution-related offences: (a) what goals have been established […]

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The tragic farce of the UN Human Rights Council

Posted on March 6, 2014 | No Comments

Beginning this week, Saudi Arabia, Cuba, China and Russia will sit in judgment of others, rather than in the docket of the accused. Yet these four regimes stand accused of many serious human rights violations, and only their suspension will restore the credibility of the HRC.

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Lessons of the Rwandan genocide

Posted on March 5, 2014 | No Comments

The following is excerpted from Professor Cotler’s remarks on February 26, 2014, at Kwibuka 20: The Official Launch of the 20th anniversary marking the 1994 Genocide against […]

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How to stand with political prisoners

Posted on March 4, 2014 | No Comments

(As published in the Ottawa Citizen) In this edited excerpt from the opening address of the Geneva Summit for Human Rights and Democracy on Feb. 25, […]

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COTLER ANNOUNCES ‘BREAKING THE SILENCE’ – A TEN-POINT POLITICAL PRISONERS ADVOCACY ACTION PLAN

Posted on February 28, 2014 | No Comments

MP Returns from Delivering Keynote Address at the 2014 Geneva Summit for Human Rights and Democracy, Announces Initiatives on Behalf of Political Prisoners  Ottawa – February […]

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