Letter to Minister David Lametti related to the State of the Criminal Justice System 2019 Report
December 5, 2019
The Honourable David Lametti
Minister of Justice and Attorney General of Canada
House of Commons,
Ottawa, Ontario K1A 0A6
Re: State of the Criminal Justice System 2019 Report
Dear Minister Lametti,
Firstly, my congratulations on your re-election and re-appointment as Minister of Justice and Attorney General of Canada. I look forward to continuing our excellent working relationship in the coming years.
I originally sent this letter to you in the pre-election period. I have been advised that all Ministerial correspondence from that period should be resent.
As you know, an important part of my mandate as the Federal Ombudsman for Victims of Crime is to identify systemic issues that negatively affect victims and survivors of crime, and recommend ways that the federal government can make its laws, policies and programs more responsive to their needs.
I was pleased to see the State of the Criminal Justice System 2019 Report published, which developed the first performance monitoring framework for the Canadian criminal justice system (CJS). I have reviewed it thoroughly and agree that we must monitor the performance of the CJS to ensure it is working effectively for Canadians. I note that its authors acknowledge that better data could improve our current understanding of the CJS and provide a clear roadmap of where the Department could increase investments, programs, and resources, and where policy and legislative change may be required.
I believe it is critically important to capture more meaningful and robust data about victims and their contact with the criminal justice system (CJS) in order to better assess and measure how victims’ rights and needs are met, if at all. It is particularly important to collect data in relation to the Canadian Victims Bill of Rights (CVBR) and the entitlements provided to victims under this legislation. We are currently lacking data related to victims’ rights under the CVBR. The data gaps limit our ability to evaluate the performance of the CJS and assess the criminal justice system’s strengths and weaknesses.
The report does not provide a clear indication of how the criminal justice system respects victims and survivors’ rights. There is no data regarding victims’ satisfaction related to the CVBR, or compliance by criminal justice system professionals with this federal statute. It is critical that national standardized definitions and responsibilities be set, so that data points can be collected in a way that provides national comparability, and ensures quality data, especially in light of the fact that the CVBR fails to assign responsibilities to specific criminal justice system service providers (police, prosecutors, and so on). This too affects whom, when, and where data is collected (or not). My Office is currently conducting research into the implementation of the CVBR in anticipation of the five-year legislated review scheduled to take place in 2020.
The report states that, “other indicators, such as victims assisted by victim services agencies, criminal injuries compensation and financial benefits programs, and restitution orders, may be included in future editions of the framework” (p.28). I urge you to instruct officials to change “may be included” to will be included. Collecting this data will provide invaluable insight into victims’ experiences of important elements of the CJS. It will also help to measure the ultimate outcome for victims; that is, do victims believe that justice was done for them?
The State of the CJS report does not reference the number of complaints received by my Office, yet it does detail complaints received by the Office of the Correctional Investigator. I believe that, moving forward, the number of complaints received by the OFOVC should be included as well, as a measure of concerns victims raise in relation to their rights and experiences in the CJS. It is in our mandate to enhance victims’ rights and experiences within our criminal justice system. The OFOVC has received inquiries and complaints related to the CVBR from victims since the bill came into force. In 2015-2016 (partial year), we received 71 complaints; in 2016-2017, 119; and in 2017-2018, 80. In addition, a total of 441 files were opened in 2018-2019. Many of the complaints we receive are related to victims being unware of their rights as a registered victim, and unaware of the victims fund. These individuals also have concerns regarding victim registration and right to participation.
An ongoing concern of mine is that a direct cause of some of the gaps in data on victims is due to the administration of criminal justice by provinces and territories, and the fact that many victims’ services are provided at that level. Because of this, there is a lack of continuity of data collected between jurisdictions. I will be seeking an opportunity to address these and other issues at a future Federal/Provincial/Territorial meeting of justice ministers, and would be grateful for your support in this matter.
My Office looks forward to your response and I am available to respond to any questions you may have. The OFOVC would like to work closely with the team working on the framework, so that together we can create an outcome that is meaningful and evidence-informed. I would greatly appreciate it if you could recommend that.
Federal Ombudsman for Victims of Crime
Recommendations to the nine broad CJS outcomes where additional indicators in relation to victims should be collected
- The number of community safety plans developed by Indigenous communities.
- Number of jurisdictions that offer third party reporting to victims and amount/types of offences reported to them
- Protection orders such a peace bonds; number ordered and in what type of offences
- The number of shelters available to women and children fleeing violence on reservations in Canada and rural/remote communities.
FAIR AND ACCESSIBLE
- How much legal aid is provided to victims and accused persons annually?
- How many victims access free legal advice programs?
- How many third-party record applications are made and granted by courts?
- How often is evidence introduced or sexual assault complainants cross-examined about their past sexual behaviour?
- Indicators within this section could include the number of individuals who self-reported discrimination by police and courts, the number of self-represented accused, and the number of successful Charter challenges. Other areas for further data development could include complaints against the criminal justice system and administrative segregation.
CONFIDENCE IN THE SYSTEM
- Indicators could include public perception that the prosecutors and courts are doing a good job of providing justice quickly and public confidence in correctional services. As an example, under outcome 7, we learn that about 66% of victims who report to police are satisfied with the actions taken by police, however there is no information regarding the level of victims’ satisfaction with the 1) courts 2) prosecutors 3) judges or, indeed, any other aspect of the CJS (e.g., Correctional Service of Canada, Parole Board of Canada, police- or community-based victim services).
OPERATION OF THE SYSTEM
- Testimonial aids - the number of cases using video technology to serve vulnerable victims and children and the number of K9 assisted interventions provided during trial.
- Number of cases provided with formal victim support and witness preparation services and for what types of crime.
- Areas for future data development could include court cases stayed due to systemic delays and CJS costs.
- The number of complaints received by federal departments through the Canadian Victims Bill of Rights and victim satisfaction with those assessed/acted upon,
- The number of complaints made to OFOVC and victim satisfaction with the outcome of their complaint,
- An indicator could include the number of Indigenous Justice Program referrals.
- Other areas for future data development could include restorative justice programs/processes (e.g., victim and other participant satisfaction and the number referrals) and specialized/therapeutic courts (e.g.,referrals to mental health / Gladue/ Indigenous/ wellness courts).
- Number of geographic restrictions placed on offenders due to safety concerns of victims.
- Offender payment of restitution during their incarceration and parole periods as ordered by the court.
VICTIMS AND SURVIVORS
- Indicators could include:
- Victims’ perception that their security and privacy was considered during the criminal justice system process.
- Number of publication bans imposed.
- The number of victims who requested victim services and were assisted.
- Number of Victim Impact Statements submitted to courts and/or read aloud.
- The number of victim impact statements submitted for consideration to a parole hearing, and the number of victims and support persons who attend a Parole Board of Canada hearings. As seen in outcome 7, the number of registered victims is cited, as is the increase since 2010-2011, but nowhere is it mentioned that there were in excess of 23,000 offenders in federal custody. The low ratio of registered victims versus the number of offenders is of concern, as it means that many victims do not receive the information to which they are entitled by law, which could have safety-related implications. This low ratio also makes collecting meaningful data from victims of crime a challenge.
- Other areas for future data development could include criminal injuries compensation programs and financial benefits programs, victims’ satisfaction with the criminal justice system, victim service agencies offering specialized programs or services for victims with particular needs, and restitution orders.
- Number of persons accessing FILU support programs.
- Indicators could include the number of unresolved cases of missing Indigenous women and girls, the number of unsolved homicides involving Indigenous women and girls as victims, and the relative rate index of Indigenous people in the criminal court system. An area for future development could include Gladue reports.
MARGINALIZED AND VULNERABLE PEOPLE
- Indicators could include the number of police-reported homicides where the accused is suspected of having a mental or cognitive disorder, and the relative rate index of visible minority groups in the criminal court system.
Critical questions concerning the Canadian Victim Bill of Rights
In regards to police investigation process:
- How and when is information about status and outcome of the investigation into the alleged offence shared with a victim?
- How and when is information about the location of proceedings and appearances of the accused such as first appearance, release on bail, conditions imposed, etc., shared?
- How and when is information about available victim services including restorative justice shared?
- How is the victim’s security and privacy considered during the investigation? What protection measures, if any, offered? i.e., peace bonds
- How are the victim’s views sought and considered during the investigation?
- How and when is information provided to victims regarding seeking restitution from the court (i.e, to save receipts of all expenses as a result of the crime), etc.?
- Are victims informed that they can complain if they feel their rights are breached? How many complaints do victims submit related to the CVBR and their rights being infringed by police? Are victims satisfied with outcome of complaints?
In regards to the trial process:
- How and when is information about the location and time of the proceedings (including accused persons found NCRMD and UST) and the outcome shared with a victim?
- How is information about the pre-trial and trial process, including preparation to testify provided?
- How are the victim’s views sought and considered during the trial when decisions are taken that impact victims?
- How is victim security and privacy considered by Crowns and at sentencing? What reasonable measures are taken to protect victims from intimidation and retaliation? How many publication bans asked for versus imposed? How many testimonial aids asked for/permitted in each jurisdiction? How many third party records applications made and granted? Do Crowns regularly oppose these applications?
- How many protection orders such a peace bonds ordered and in what type of offences?
- At sentencing, how many victims participate through VIS/CIS filed in court vs read aloud in court; who is presenting them (direct victims or family members); how many are challenged by defence counsel and subsequently edited?
- Are victims informed about their right to seek restitution from the court (i.e, to save receipts of all expenses as a result of the crime), etc.? How much restitution is ordered by courts, paid by offenders and actually collected by victims in all jurisdictions?
- Are victims informed that they can complain if they feel their rights are breached? Number of complaints victims submit related to the CVBR and their rights being infringed? Are victims satisfied with outcome of complaints?
- Does the Crown measure victim satisfaction with prosecutors and support provided throughout the trial?
- Is victim satisfaction with court outcomes and prosecutors better in QC or BC where there is Crown screening of charges.
In regards to the Federal Corrections and Conditional Release process:
- How and when is information about the date, destination and conditions attached to an offender’s release under the CCRA provided?
- How and when is information about victim services including restorative justice provided? How many victims registered and how much information provided?
- How is victim security considered in decision-making? How often are measures such as placing geographic restrictions on the offender imposed?
- How many victims participate and how much funding is provided to cover their travel expenses to participate in parole hearings? How many support people accompany victims to parole hearings and how much is spent to cover these expenses?
- How often are victim views considered at parole hearings i.e. VS presented in writing, by video or audio recording or in person?
- How does CSC/PBC oversee offender payment of restitution during their incarceration and parole periods as ordered by the court?
- Are victims informed that they can complain if they feel their rights are breached by a federal body? Number of public complaints victims submit related to the CVBR and their rights being infringed? Are victims satisfied with outcome of complaints?