Letter to the Parole Board of Canada related to the attendance of victims at parole hearings during COVID-19
April 14, 2020
Ms. Jennifer Oades
Parole Board of Canada
410 Laurier Avenue West
Ottawa, ON K1A 0R1
As you are aware, my Office has received numerous complaints from victims who are being restricted from attending parole hearings at this time. This remains a grave concern.
I understand that correctional institutions are not permitting personal attendance of observers at parole hearings in light of the Covid-19 pandemic. This is an understandable precaution for the safety and security of institutions, inmates and employees. However, I also understand that, although victims are being told that their only recourse is to send a written statement (or audio/video recordings of their VS), the same limitations have not been imposed on offenders' assistants. I understand that accommodations are being made on a case-by-case basis for participation of assistants.
I am writing to urge you to provide similar accommodations for victims of crime, who have important statutory rights to participate in parole hearings. I draw your attention to the Canadian Victims Bill of Rights (the "CVBR"), which is a quasi-constitutional piece of legislation providing that the rights of victims must be considered throughout the criminal justice system, which includes the correctional system. Section 21 of the CVBR requires that all other legislation be interpreted in a fashion that is compatible with the rights under the CVBR, and section 22 provides that the CVBR prevails over other legislation, with limited exceptions. The Corrections and Conditional Release Act (the "CCRA") is not excepted from the application of the CVBR.
I understand that your rationale for providing accommodation to offenders' assistants is based on the statutory rights given to offenders under the CCRA. Presumably you were referring to section 140(7) of the CCRA which provides that the "Board shall permit the offender to be assisted" unless the presence of that person would be contrary to section 140(4). However, I note that victims also have similar statutory rights to attend parole hearings as observers.
In accordance with section 140(4) of the CCRA, the Board "shall" permit a person who has applied in writing to attend as an observer, unless one of the contraindications set out in section 140(4) is present. Furthermore, 140(5.1) requires particular attention to be given to the right of a victim to attend as an observer, requiring the Board to make every effort to fully understand the need of the victim to attend the hearing. This section goes on to require that the Board "shall permit a victim" to attend unless one of the contraindications in section 140(4) is present.
In addition, there is a further right given to a victim if it is determined that the victim will not be permitted to attend. Section 140(5.2) of the CCRA provides that the Board "shall" provide for the victim "to observe the hearing" by means determined by the Board.
Offenders have important liberty rights in the context of a parole hearing. However, both the CCRA itself and case law has established that the protection of society is paramount, and the proper balance must be struck between the interests of the offender and the interests of society, of which victims are an important part.
The current approach of the Board to provide case-by-case accommodations for offenders' assistants, while imposing a blanket refusal to even consider the attendance of victims by means other than physical presence is unfair. Furthermore, the current approach has not taken into account the statutory requirement to permit a victim to observe a parole hearing if they are not permitted to attend. I believe that the current approach fundamentally fails to comply with the statutory rights of victims.
I note that many courts, court facilities, and tribunals have made arrangements for attendance of participants in creative ways such as teleconferencing or video attendance. I would strongly urge the Board to comply with relevant statutory requirements and implement alternate methods for victims to meaningfully participate in parole hearings.
As always, I would be pleased to discuss further with you, as this requires our immediate collective attention.
Yours very truly,
Federal Ombudsman for Victims of Crime
The Honourable Bill Blair, Minister of Public Safety Canada
The Honourable David Lametti, P.C, Q.C., Minister of Justice and Attorney General of Canada