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June 14, 2023

Federal Ombudsperson for Victims of Crime

Remarks to Standing Senate Committee on Legal and Constitutional Affairs Bill S-12: An Act to amend the Criminal Code, the Sex Offender Registration Act and the International Transfer of Offenders Act

Honorable Chairperson and Members of the Committee,

As Federal Ombudsperson for Victims of Crime, I am responsible to make recommendations to improve rights and services for victims and survivors across Canada.

It is nice to see you again. I look forward to discussing Bill S-12.

Today, we are on the traditional unceded, unsurrendered territory of the Algonquin Anishnabe people. That is an important starting point. I believe that colonial violence, historical and present, creates a critical need to listen and engage with Indigenous Peoples in the pursuit of justice and reconciliation. As a white settler, I know that it’s not my place to define what reconciliation means or what it requires, because I’m not the one who has been harmed. I honour the leadership, strength, and wisdom of Indigenous communites, and humbly offer my gratitude to those who have found the grace to accept me as worthy of reconciliation.

This past month, I’ve been reflecting on how absurd it would be to try and pursue reconciliation without Indigneous People. Without listening, there can be no justice.

And yet, somehow the criminal justice system continues to make that mistake. To pursue justice, without truly listening to the people who have been harmed. To make decisions on their behalf without consultation, assumptions about what would be best for them, and constantly reminding them that it’s not their trial, the Crown prosecutor is not their lawyer, and the rights they thought belonged to them on paper are not binding. For Indigenous survivors who contact our Office, that’s what colonialism looks like. The criminal justice system appropriates the suffering of victims and survivors.

Since Bill S-12 was introduced, our team has been hearing from survivors of sexual violence across Canada about their interactions with the legal system – a term I’ve heard used repeatedly, for years, because many survivors refuse to call it a justice system.

As the Federal Ombudsperson for Victims of Crime, and as a person, I try my best to lean into optimism and try to inspire people with my genuine belief that we can choose to change our approach and do better. But right now, the weight of those conversations with survivors is sitting with me. We have to do better. Please.

I am happy about Bill S-12. If passed, it includes two steps toward stronger implementation of the Canadian Victims Bill of Rights. I will focus my comments on Publication Bans and the provision of information after sentencing.

Publication Bans

Publication bans, while meant to protect victims of crime have had unintended consequences.

Many victims do want their identities protected. However, others have been harmed when bans are imposed without their consent or knowledge. You have heard directly from survivors and victim advocates, and we support the proposals that were championed by My Voice My Choice and jointly submitted to this Committee on behalf of multiple organizations. Survivors are harmed when the criminal justice system violates their identities. And, there are complex barriers to getting a ban lifted.

We have heard from victims who were humiliated or felt betrayed when they learned that the offender had standing on their request to remove a ban. That means the offender and their lawyer can object to a survivor asking to use their own name.

S-12 would ensure that victims are consulted before a publication ban is ordered. That is a great step. At the same time, based on concerns we have heard from survivors, we believe this should be a process of informed consent. The advantages and disadvantages of publication bans need to be explained to victims before a ban is ordered, and they should be provided with resources that explain their options and their rights. Since victims do not currently have an equivalent right to independent legal advice in all jurisdictions, providing resources is the least we can do.

Our Office previously recommended that a clear procedure to lift a publication ban should be added to the Criminal Code. We are pleased to see that in Bill S-12. The proposed measure would still require a victim to attend a hearing before a judge. We recommend that a simplified, ex parte administrative process be developed for cases with a single victim [or to allow the application to be heard by a Justice of the Peace].

Information on the Sentence and its Administration

If passed, Bill S-12 would require a judge at sentencing to ask the prosecutor if reasonable steps were taken to determine whether the victim wishes to receive information regarding the sentence and its administration. The Bill also adds a check box to request this information on the form for victim impact statements used at sentencing.

That might not seem significant, but it is a major advancement in access to victim rights that I identified as one of the top priorities for my 3-year term as Ombudsperson.

At the federal level, the Correctional Service of Canada (CSC) and Parole Board of Canada (PBC) already allow victims to register to receive information, and in recent years, they have developed a secure, online portal to share information with victims. The system can provide automatic notifications, information about victim rights, inmate transfers, restorative justice, parole hearings, and release dates. Victims are offered multiple opportunities to submit victim statements where they can share safety concerns or other perspectives they would like to have considered, and there are clear instructions on how to participate in parole hearings.

However, if victims do not register, they will never hear from the system again, and no one will tell them about transfers, parole hearings, or when the person who harmed has been released. This is a major source of complaints to our Office. Currently, only 27% of federally sentenced offenders have registered victims.

Prior to Bill S-12, no one has had a legislated responsibility to tell victims about registration. So the mechanisms provided in the Bill bridge a substantial gap.

I recommend that:

You pass this Bill with some amendments: 

1. Provide resources to support informed consent: Decisions about publication bans or receiving information after sentencing have consequences for survivors. The pros and cons should be clearly presented with supporting print or digital resources that provide further information. Trauma can make it difficult to process information, so having something to review can improve decision-making. We would like to see language about resources added to the Bill.

2. Simplify the process to remove publication bans: Develop an administrative process to remove a ban without a hearing in court. Simple cases could involve an application to the crown for judicial signature, or a meeting with a Justice of the Peace. An offender should not have standing on the victim’s identity.

3. Clarify “information on the sentence and its administration”: This language is too vague and offender-centred. Victims need clear language to understand how this relates to them. I would like to see examples added in form 34.2 (Victim Impact Statement) to ensure victims understand this includes information about victim services, how to participate in parole hearings, release dates, and how to share safety concerns. These examples should also be explained by the prosecutor as part of the threshold to inform a judge that the victims were offered a choice. 

Thank you again for your time.