Legislative Assembly of Ontario

VICTIMS OF CRIME

BARBRA SCHLIFER COMMEMORATIVE CLINIC

CANADIAN RESOURCE CENTRE FOR VICTIMS OF CRIME

CANADIANS AGAINST VIOLENCE

CONTENTS

Monday 7 June 1993

Victims of crime

Barbra Schlifer Commemorative Clinic

Marina Browning, acting legal director

Canadian Resource Centre for Victims of Crime

Scott Newark, president

Canadians Against Violence J-67

Deborah Mahaffy, representative

STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE

*Chair / Président: Marchese, Rosario (Fort York ND)

*Acting Chair / Président suppléant: Wood, Len (Cochrane North/-Nord ND)

*Vice-Chair / Vice-Président: Harrington, Margaret H. (Niagara Falls ND)

Akande, Zanana L. (St Andrew-St Patrick ND)

Chiarelli, Robert (Ottawa West/-Ouest L)

Curling, Alvin (Scarborough North/-Nord L)

*Duignan, Noel (Halton North/-Nord ND)

Harnick, Charles (Willowdale PC)

Malkowski, Gary (York East/-Est ND)

*Mills, Gordon (Durham East/-Est ND)

*Murphy, Tim (St George-St David L)

Tilson, David (Dufferin-Peel PC)

*Winninger, David (London South/-Sud ND)

*In attendance / présents

Substitutions present/ Membres remplaçants présents:

Wood, Len (Cochrane North/-Nord ND) for Mr Malkowski

Also taking part / Autres participants et participantes:

Jackson, Cameron (Burlington South/-Sud PC)

Clerk / Greffière: Freedman, Lisa

Staff / Personnel: McNaught, Andrew, research officer, Legislative Research Service

The committee met at 1559 in committee room 2.

VICTIMS OF CRIME

Consideration of the designated matter pursuant to standing order 125, relating to victims of crime.

The Vice-Chair (Ms Margaret Harrington): I'd like to call this meeting of the standing committee on the administration of justice to order. This afternoon we are dealing with standing order 125, regarding victims of crime.

BARBRA SCHLIFER COMMEMORATIVE CLINIC

The Vice-Chair: I would like to call forward Marina Browning, who is the legal director of the Barbra Schlifer Commemorative Clinic. Would you like to go ahead.

Ms Marina Browning: Thank you. As was just indicated, I am legal director of the Barbra Schlifer Commemorative Clinic in Toronto. I'm actually acting legal director of that clinic at present. I am the senior staff lawyer at the clinic.

The Barbra Schlifer Commemorative Clinic is a unique service, a unique program, in my understanding, in Canada in that it provides, under one roof, legal counselling and cultural interpretation services exclusively to women who have been victims of violence, specifically victims of partner assault, sexual assault and adult survivors of childhood sexual abuse and incest.

I have been practising law in the province of Ontario since 1985 in a number of areas I would basically describe as comprising social justice law. I have also been a victim and a survivor of robbery and sexual assault. In fact, I was sexually assaulted by a serial attacker in the city of Toronto in 1985. I had just been called to the bar at that time and had just started practising law. I lost my very first position as a lawyer in private practice at that time because my associate thought that perhaps I needed more time than the 10 days off that I was asking for to recover from having been brutally, I would say, sexually assaulted. I literally took a leave of approximately 10 days, after which I was handed my walking papers, so to speak, so that I could take all the time off that I wanted.

I think that sort of reaction points up very clearly the types of societal attitudes that women are still fighting. I think if women like myself are fighting this within the legal profession, certainly women who are less socioeconomically privileged as I am are fighting this to an even greater degree.

I have to say that I've seen at first hand, having testified at the sexual assault involving myself, what it is like to be a victim of crime, sitting on the stand and having a lawyer like Clayton Ruby representing the accused in a particular matter. I can tell you that my training as a lawyer and my knowledge as a lawyer did not assist me at all in sitting on the witness stand and being a victim of crime who was required to testify orally as to my victim impact statement about the effects of the assault on me.

Very clear to me also were the differences in the way police officers and crown attorneys treat women who come from varying socioeconomic and cultural backgrounds. In my particular case, this matter was quite highly publicized in the media in Toronto. The police put innumerable resources on it. They treated myself and other women who were attacked by this assailant with the utmost dignity, respect and courtesy because it was a high-profile matter, frankly, because police careers were being built on how they responded to this particular matter. I would have to say that I was one of the fortunate few in the province who had the kind of attention from police and crown attorneys directed to my case compared to other women who have had to go through the criminal court process.

When I came here today, I intended to actually speak in a more formal matter and not really to refer, other than in passing, to what I've just indicated to you. However, I have the sense that perhaps there has been a greater level of informality at these proceedings than I might have been aware of. I think it's important to put my own personal experience out on the line.

As a result of my own experience as a survivor of sexual assault, I became very involved in legal work that dealt with women who have been victims of sexual assault and domestic violence. I also coordinated, in 1987 to 1988, a court victim/witness program in what was then the provincial court (criminal division) in North York. In that capacity I've had considerable experiences, as throughout my entire legal career, with crown attorneys, with police officers, with all sectors of the criminal justice system, as well as with therapists, counsellors and support advocates of women who have been survivors of violence.

I have thought many times, and I still do -- it's a daily part of my experience as a lawyer, as a woman, as a survivor of violence -- about what changes in the system, and most particularly in societal attitudes, are necessary in order to assist survivors of violence in proceeding through the maze of legal so-called remedies available to them which, in the end, rarely achieve any semblance of either societal justice or personal justice for the victim and/or her family.

First, let me say that an adequate review of the current weaknesses and injustices in the civil, criminal, family and administrative tribunal systems as they affect victims of crime -- and I have interacted in my work with all of those systems and assisted victims of violence through all of those systems -- would really require more time and another forum than what I have available to me today. I will thus limit my comments to the points that are of most pressing importance to me in the context of these hearings today.

I will say, then, at the outset that the existing provincial programs that are designed to support and aid victims of violent crime and their families still remain, in spite of their admirable intentions, woefully inadequate to the task of practically and comprehensively addressing the entire spectrum of needs that arise for a victim of crime in the three- to five-year period following the infliction of violence upon her.

I refer here specifically to two provincial programs: the court victim/witness program operated under the auspices of the Ministry of the Attorney General and the Criminal Injuries Compensation Board program. I know that this committee has heard submissions, I'm sure by this time, regarding both of those programs, so I will not go into detail, but I'm sure you have already been told that with respect to the court victim/witness program there are insufficient sites for these programs in the province. There are probably no more than 10 to 12 sites in the entire province in which this program operates.

There is insufficient staffing; there is insufficient resourcing; the court victim/witness coordinators in those criminal courts in which they do operate have extremely high case loads. If you think of all of the women alone every day in Metropolitan Toronto who are victims of crime who are proceeding through the criminal court system as victims and that in each of the courts in Toronto where this program operates there is only one coordinator dealing with referrals from the various crown attorneys who operate in those offices, I think you will see clearly that there is completely inadequate resourcing in this program.

I'm also concerned that this program does not operate independently of the crown attorney's office, so there may sometimes be a conflict between what the victim of crime requires and what she's able to get because of the coordinator's ties to the crown's office, and there are sometimes conflicts that arise there. There are also problems with subpoenability of court victim/witness coordinators.

With respect to the Criminal Injuries Compensation Board, you have already been told, I would think, of the difficulty, the lack of recording of decisions of the Criminal Injuries Compensation Board, the lack of availability to the general public of those decisions and the reasons, the basis on which they make their decisions, the rebuffing, in essence, of the principle of women being represented by legal counsel or a legal advocate at Criminal Injuries Compensation Board hearings if they wish to and, depending on the panel you get when you are present at a hearing, the great variability in attitudes towards sexual and partner assault and women who are victims of those crimes.

I myself again experienced being a victim before the Criminal Injuries Compensation Board and I have to say it was a horrendous experience. If the investigating police officer had not been present with me at my hearing to essentially give voice to what I, as I think a fairly verbal and expressive lawyer, could not give voice to because of the trauma that I had experienced, I do not think that I would have gone through the process. In fact, in retrospect, because of the negative attitudes that were expressed by the panel at my own hearing, I would not highly recommend a victim of crime proceeding through that process. I would give pause to recommending her proceeding through that process and perhaps being retraumatized.

I have to say that at the Barbra Schlifer clinic we have very limited resourcing ourselves. We have women every day who approach us about what their legal options are with respect to having been victims of crimes of violence. I have to say I'm very blunt with the women who come to me. I tell them that if they are expecting to achieve personal justice in the criminal justice system in particular, they perhaps should put that notion aside. There's got to be something else compelling them and driving them to go through the horrendous process that they have to go through in order to even go to the police, seek to have a charge laid and proceed through that process. I have seen women and counsellors at our clinic have seen women who have been destroyed by the process of proceeding through the criminal court system.

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It would take much greater time than I have available to me today to express what I see first hand in my role as a legal advocate for these women in the criminal court system and what they experience. I recently, however, to mention one case in particular, assisted a woman who was a victim of a brutal sexual assault and attempted sexual assault by a man within a 10-day period. I recently saw her assailant acquitted in the Ontario Court (General Division) because the judge, although he preferred her evidence to the accused and found her to be a credible witness, was not given sufficient data or evidence presented by the crown attorney in a case to help him understand what a victim goes through when she is experiencing rape trauma syndrome.

There is woefully inadequate training of crown attorneys in the criminal court system on post-traumatic stress disorder, rape trauma syndrome, child abuse accommodation syndrome. They refuse to call expert witnesses.

In this particular case, I was present throughout most of the trial. The judge cried out to the crown, almost begged the crown attorney, to present evidence that would help him understand why this woman stayed in the same apartment as her assailant for approximately three weeks after the two assaults. This woman was paralysed with fear. She was not able to leave the apartment and escape from her attacker. There is a lot of accumulated evidence as to the paralysis that a woman experiences when she has been a victim of rape. The crown attorney refused to call that evidence, even though the judge pleaded for it. I believe the case was essentially lost on that basis, and that unfortunately does not form an appealable error of law. This woman saw her attacker get up, walk past her in the courtroom and leave, a free man, because the crown attorney did not adequately do her job.

There are numerous problems with the police still laying charges in matters -- undercharging, in other words -- where circumstances would give rise to a charge of aggravated sexual assault, simply charging sexual assault alone. I'm sure you've heard probably numerous stories about the insufficient contact between the police and the victim, crown attorneys and the victim, through the process; crown attorneys proceeding with pretrial arrangements, plea bargaining arrangements, without consulting the victim; proceeding with bail hearings not notifying the victim; not notifying her of the conditions of an interim release or bail release; of the lack of involvement of the victim: Even though she has the right to put forward a victim impact statement, a crown attorney still has the right to edit it and present it in whatever form he or she may desire or to not even present it as evidence at all.

There are numerous, numerous problems in this system, and I'm not presenting nearly everything that I wanted to present right now, but let me get right to the point of what is a primary concern for me today. I believe that the victims' rights bill that has been presented in the House and still has been considered off and on in the House for the last four years is a very good start to enshrinement of basic rights that victims ought to have when they're proceeding through the civil and criminal court systems.

However, I believe this bill could go even further, and I believe that what is needed in this province is the right for a victim to have party status in not only civil matters but in criminal justice matters and in quasi-judicial proceedings such as disciplinary proceedings under the Police Services Act or what will soon be the Regulated Health Professions Act.

Victims have a right, they have an interest in the process, and that right is not always adequately protected by the prosecutors or crown attorneys in these cases. I've had firsthand experience of that in a matter I'm assisting a complainant with right now in a hearing at the offices of the College of Physicians and Surgeons. Where the interests of a victim and the prosecutor diverge -- and there will be numerous instances in which they will diverge; for instance, whether a victim's medical and psychiatric history ought to be permitted to be produced and released to defence counsel and called into evidence.

There are numerous instances, which most prosecutors will acknowledge, where their interests and the interests of the victim will diverge. In those instances, a victim ought to have a right to retain her own lawyer, to have full independent legal representation. She ought to be granted the right to be a party at that point in the proceeding and for her lawyer to be a party to the proceeding. Whether that person is necessarily a lawyer or not is not particularly important, but she needs to have a legal advocate at that point.

I believe we need to give serious consideration to such a right in this province before we can hang any substance to a victims' bill of rights or any of the other improvements that we are trying to make to the judicial system in Ontario. Thank you very much.

The Vice-Chair: Thank you very much. Mr Winninger first.

Mr David Winninger (London South): You've certainly made a number of very good points today. I just wondered if you were aware that when the Attorney General appeared before this committee last week, she had acknowledged that it's only within the last five to 10 years that there's been an increasing interest in sensitivity to the rights of victims of crime. While she did reiterate some of the fiscal constraints we're under, she did emphasize at that time that money for training, both of police officers and crown attorneys, has not been cut back.

I guess my question to you is this: Given the level of trauma that you've experienced and obviously that your clients have experienced before the justice system, is having an independent lawyer for the victim really going to go very far towards solving that trauma? Right now, in practice, it's the prosecuting attorney who acts on behalf of the crown but indirectly ensures that justice will be done in terms of the crime committed and the victim who suffered as a result of the crime. So if you have a sensitive crown attorney, do you really need an additional lawyer in court? Because if that were the case, any traumatized victim of a robbery or a physical assault, a non-sexual assault, might argue the same case.

Ms Browning: I've had a lot of expertise in this particular area, and I will say that I have had crown attorneys and prosecutors in quasi-judicial matters, quasi-criminal proceedings, personally tell me that they know that in terms of their protection of the public interest, there will often be a conflict. They take the role that they are neutral individuals who are not there in any sense to advocate on behalf of the victim.

I've had a classic example in a matter I'm dealing with right now, where a prosecutor for the College of Physicians and Surgeons of Ontario who is prosecuting a matter of sexual assault and professional misconduct -- negligence, actually -- regarding a doctor has been very supportive of the complainant, my client, having standing in this matter when she would normally just be considered a witness, although the crime occurred to her, and of me having party status. That's because he realizes that because his role as a prosecutor is to present all evidence that comes before him whether it is favourable to the victim or not, he can only go so far in representing the victim's interest. Even the defence counsel in this particular matter has been quite agreeable to the victim in this matter having party status.

I do believe that to give a victim, for instance, as in the proposed victims' bill of rights, the right to representations before a crown attorney on matters of sentencing, the right to representations where bail conditions are being set, but not to permit her to have an independent legal advocate who is able to make those representations for her, gives no teeth, no meat, to those particular provisions.

Mr Winninger: I was going to say, though, that once the finding of guilt has been made, isn't that when the victim impact consequences are made known to the court and when the crown attorneys can then perhaps adopt a more positive role?

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Ms Browning: That's if you get a conviction, which is actually quite rare in sexual assault cases, as most crown attorneys will tell you.

I'm talking about that whole period from the time the police attend at a victim's home or the time a victim goes into the police station and the matter of laying of charges is being considered, through that entire process up until trial, which can cover a number of months. During that time there can be numerous legal proceedings or matters affecting the criminal court proceedings that a victim needs to be involved in. So I'm talking prior to that time.

I'm not saying that a victim should always automatically, necessarily, have the right to independent legal counsel. I do believe that a protocol, guidelines, need to be established for what circumstances a victim of violence ought to be able to have the right to full independent legal representation. I think that can probably be done quite amicably between the crown attorney system and the private bar.

The Acting Chair (Mr Len Wood): Thank you very much. We want to move on. I believe Ms Harrington has a very brief question.

Ms Margaret H. Harrington (Niagara Falls): Just a short comment. First of all, thank you very much for coming and bringing up some very fundamental ideas, such as that there's a problem in society's attitude, and how to change this is the question. I just happened to be speaking last night to a woman from Niagara Falls discussing some of the concerns of what happened there a week ago in the killings, and her statement was just this: "There is no justice for women." I said, "I'm the only woman on the justice committee, so we're going to try and change things very slowly."

You mentioned giving victims party status as one direction to go. Maybe if we had 50% of our lawmakers or legislators women, it might help as well.

Ms Browning: Yes, that's very true. If anyone on this justice committee wants to really get a sense of what women go through in the criminal court system, all they have to do is go into any one of our criminal courts and sit for a week in sexual assault matters. I consider myself to be quite an optimistic individual. I think a week sitting in criminal court matters in which women are victims will lead you to see how very unfair and unjust the system is.

As I say, the women I've seen go through the system are incredibly courageous women. They are battling numerous odds. Personal justice is very rarely achieved through that system. For women to go through that system as often as they do go through it, knowing that at the end there probably will not be a conviction in the matter and that if there is a conviction that sentencing will probably not be appropriate to the circumstances, that takes a great deal of courage.

The Acting Chair: Thank you very much. I'm sorry that we're going to have to cut in. Mr Murphy has a question.

Mr Tim Murphy (St George-St David): Thank you very much for coming and for your presentation. I appreciate it.

You made reference to a case recently in General Division where you said that the judge was asking for expert evidence and because of the absence of it being introduced by the crown, the accused was acquitted. Is that correct?

Ms Browning: It wasn't sufficient, in the judge's mind, to move the case beyond a reasonable doubt.

Mr Murphy: I'm just trying to understand how the evidence of the affect on a victim related to the view -- I mean, it was a sexual assault case?

Ms Browning: It was a sexual assault case.

Mr Murphy: And the evidence of the impact on the victim was insufficient to establish the facts of the assault?

Ms Browning: No, not the impact on the victim. There were certain things around the circumstances of when the assaults occurred and what happened in the period immediately after that were problematic for the judge. He basically, as I said, indicated in his judgement that he preferred the evidence, that he found the victim to be more credible than he did the accused. However, to move that finding on his part to the standard of "beyond a reasonable doubt," he needed to be adequately reassured as to why the victim didn't leave the premises within a certain period of time after, and that evidence was not offered by the crown attorney.

Mr Murphy: Okay. Do you know why that was the case?

Ms Browning: The crown attorney has essentially indicated that she did not feel that evidence was particularly necessary or useful to her case. She did not think she could find the necessary expert testimony in order to explain the victim's response in those particular circumstances.

Mr Murphy: Are there a number of experts within, for example, Ontario who have a lot of knowledge in this area who could have provided testimony at the trial?

Ms Browning: There are experts who are available. However, I just want to bring up another point. Right now I think there is a chill operating among therapists, medical and non-medical, who might well testify in civil or criminal proceedings involving crimes of violence, because of the disclosure rules; I mean essentially because of the Supreme Court of Canada decision in Stinchcombe and the fact of what the police officers and crown attorneys have to disclose in terms of receipt of medical or psychiatric evidence about a victim.

I know therapists and counsellors right now and psychiatrists who are not really keeping notes because they are so concerned about those notes being subpoenaed by either the crown or the defence and coming into the hands of the defence. So whereas there are experts available, I think right now there is a real problem with the willingness of certain experts to come forward.

Mr Murphy: Do you think some guidelines perhaps -- or even amendments in some cases, although some of it might have to be federal amendments -- provided by the Attorney General to crown attorneys in terms of attempting to make distinctions, justifications before judges in terms of certain disclosure requirements might be of assistance in that regard?

Ms Browning: It may be, but my understanding is with -- we're expecting a report from the Martin commission any day now. The Attorney General's office is anticipating a report from that commission, which has been a matter of a lot of speculation among those of us in the legal profession who deal with these matters.

I anticipate that disclosure rules as they stand right now are actually going to be tightened in almost all cases rather than opened up and made more variable in cases involving sexual assault.

Mr Cameron Jackson (Burlington South): Ms Browning, thank you very much for your presentation and covering such a far-reaching range of issues that all come back to what I believe was your central theme, that our courts have not served women in matters of sexual assault and violence well and that perhaps a victims' bill of rights is one of the steps that this Legislature could engage in to help advance or correct that course of action.

To take the case you used, the specifics of the case you used, I'd like to go away from that because that's highly risky since it's a current case, but --

Ms Browning: Well, there's no appeal being sought in that particular case. The appeal period has passed. So you're fairly free to be able to speak about it if you wish.

Mr Jackson: I've had occasion to go to court on behalf of some of my constituents in similar matters and have been quite concerned about the level and the response and support from the bench. I'm reminded of Justice Vannini and the court in Sault Ste Marie and some of the offensive language and statements that were coming from that judge and the need for reforms in that area, which we're beginning to see, but they're the tip of an iceberg.

We have had judges in this province make statements in court such as, "I know you beat your wife but this time you may have gone a little bit too far." That sort of acceptance of domestic violence coming from the judge, let alone a crown attorney, is quite an experience for a woman who is looking for justice and not finding it anywhere from anyone.

If I might, instead of asking you a question, I just wanted to indicate for the committee's benefit that the bill that is before you, the second bill, was modified extensively through the collaborative efforts of Mary Lou Fassel, who is the legal director at the Barbra Schlifer clinic. I'm not a lawyer by trade, but I was very much guided by her input and her contribution to this bill.

Although it's not a complete bill, it raised several of the issues which were of concern to the directors of the Schlifer clinic, Pat Marshall at Metrac, the Metro Action Committee on Public Violence Against Women and Children, and others, that the bill does deal with certain issues around sexism and violence and our court system and police responses and others.

Without quoting some of the comments from Mary Lou Fassel, I just, for the record, wanted to indicate that that clinic has had -- and in no way an endorsement of the fact as to which political party brought it in or which political party has turned it down, but rather in the best interests of women in Ontario to advance their legitimate rights and not be revictimized in the process of seeking justice.

The Chair (Mr Rosario Marchese): Mr Jackson, we're near the end. Were you going to ask a last question or are you done?

Mr Jackson: I was going to give the last word to Ms Browning, because I felt her presentation was most compelling.

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Ms Browning: I'm not certain what I would say in conclusion, except to say that I was in a proceeding recently where I'd been counsel to a complainant, and she actually heard defence counsel get up and say, in response to a request on my part to receive standing in the matter, that she did not have an interest in this particular matter as the complainant. As the victim of a sexual assault, she did not have an interest.

Again, the issue that the interest of a victim is adequately, in all circumstances, represented by the prosecutor, is clearly, clearly not the case. Most prosecutors with any sensitivity at all will acknowledge that. Again, I would urge very much that the idea, the principle, of a victim being given party status in certain circumstances in civil proceedings, criminal proceedings, quasi-criminal proceedings and administrative proceedings be considered.

It would require a tremendous amount of cooperation among various legislative authorities, it would require amendments to numerous pieces of legislation, from the Statutory Powers Procedure Act to the Criminal Code, but I think it is something that ought to be considered, and until that matter is even discussed openly among committees like this, I think victims in this province have still much, much too far to go.

The Chair: Ms Browning, thanks very much for coming today and giving us your presentation.

Ms Browning: Thank you.

CANADIAN RESOURCE CENTRE FOR VICTIMS OF CRIME

The Chair: I'd like to call Mr Newark to come forward. Mr Newark, welcome to this committee. You have half an hour and you may decide to leave some time at the end for these kinds of questions.

Mr Scott Newark: Yes, sir. I should indicate at the outset -- I listened to the last presentation -- I'm a former crown prosecutor. I was a prosecutor in Alberta for about 12 years. I left about six months ago to go to Ottawa. I head up the organization called the Canadian Resource Centre for Victims of Crime, which is funded by the Canadian Police Association, as well as a publishing company. I am also the general counsel with the Canadian Police Association.

I think, if I'm not mistaken, the brief that I see being passed around, or briefs -- I'm sorry, I've been on the road for about 10 days. I didn't have time to write something specifically in relation to this committee hearing.

Much of what I do is in relation to federal legislation and proposed federal policy, but obviously there is a tremendous impact of provincial administration of justice on how the service ends up being delivered, if I could put it that way.

The comments in relation to the victims requiring counsel of their own I thought struck right at the heart of the matter, because in many ways, I suppose, it defines in one sense why I ended up making the very difficult decision to leave the crown's office. I enjoyed the job very much, but increasingly I found myself finding it harder and harder to explain the criminal justice system to victims of crime in the sense that explaining meant justifying, because increasingly I found what I was trying to do was justify the unjustifiable.

It's been said by many different people in different ways, but the essence of it is that often the real victimization of a victim begins once the criminal justice system takes over. Now I am by no means certain that is axiomatically so or that a complete system overhaul from top to bottom is necessary as much as it is rethinking some attitudes and, frankly, opening the process up a lot. I use the specific example about the necessity of a victim having counsel independent of the crown to make the point.

I remember, when the victim impact statement came out, somebody asking about the victim impact statement, as to whether or not that should be put into evidence. My response was, "Well, really, I think if I'm doing my job as a crown prosecutor, you probably shouldn't need it."

My experience is in relation to the crown in Alberta and not in this province, and I think I can tell you that, at least from the police perspective and the crown perspective and the courts, things are getting much better. We still have a very, very long way to go.

The victims' rights bill that I had a copy of, I examined it, I've seen it before, and I must admit in the portion that is section 2 of the bill, essentially the description of the kinds of entitlements that victims have, or should have, the real question you want to ask yourself I think is whether that should be in the form of a statute or whether that should be the cornerstone of policy of the Attorney General's department, because, at least in my perspective, that is certainly -- and I think I'm probably displaying my bias when I tell you that I think it should be simply the departmental policy.

The reason, for me at least as a prosecutor, as a lawyer I guess, is that if there's no -- I mean, what happens if somebody violates the provisions? There's no consequence for it, you know? Statements I would rather see enforced.

My question would have been similar, Mr Murphy, to some of the area you started pursuing about specific cases. I can only guess that the area that it may have caused some problem in would have been in relation to the question of consent. There must have been a differing version in relation to the facts and somebody had to make a tough credibility call on the sense of what took place, and something required some explanation.

The other question I would have asked is, so what happened? You know, I take a fair number of calls from people increasingly all across the country who are victims of crime, not only dealing with my specialization, which has become, by default almost, working in the parole system and usually with the federal institutions, but also in getting people to work through the system, and the essence of it for me seems to be more getting access to information and recognizing that it's not some other system out there that people literally get imposed on them.

One of I suppose the realities that I've noticed more than anything else is that often victimization, and particularly physical victimization, imparts a sense of helplessness, and one can imagine that simply from the act itself. But when you add to it that you deal with a system where you haven't got a clue what's going on and that to a large extent you run into people who don't really feel it's part of their job to sit down and talk to you and, to be fair, don't have the time to sit down and talk to you, aren't provided with resources to sit down and talk to you, you can imagine how that compounds that sense of helplessness and how it also makes it much more difficult along the way when you see a result that suddenly comes out because no one's bothered to sit down and explain it to you.

I'm glossing over when I say no one's bothered to. There's a real question in the sense of departments of the Attorney General, for crown attorneys, and Solicitor General's departments recognizing that, for myself, for example, as a prosecutor, it's as much a part of a prosecutor's job today -- sorry?

The Chair: I'm sorry. I was distracting you. I was pointing the finger at somebody else.

Mr Newark: Okay. It's as much a part of a prosecutor's job today to take the time to sit down and talk to that child witness who's got to go on the stand in a couple of days, and I'll say that not only as a matter of sensitivity but as a matter of, frankly, practicality, because the odds are a lot better that I'll get the evidence that's going to be necessary to get the truth to come out, and that is the overriding function of the crown prosecutor.

That sometimes gets overlooked because it is very difficult when you're dealing with people who've been victimized by crime, but our system is still based on that notion of the crown or the state and the offender and we recognize that there has been something that's done to a specific individual.

I'm on a committee in Ottawa that is dealing with crime prevention and I had a very strong disagreement with a sociologist who was talking about how the system is evolving into its being between the offender and the victim. I think we make a terrible mistake if we allow that process to occur, because in reality what goes on is that each and every one of us is affected when people are victimized by crime. We don't want to lose sight of that.

My suggestions really are that, if you're going to make procedural amendments or policy amendments, you make them so that they open the process up so that people, frankly, get to talk to the crown attorneys, and if they don't talk to the crown attorneys or they find a crown attorney who won't talk to them, then you attempt in your policy to make there be a consequence for that, because it is part of the crown's job in doing that.

Similarly -- and I can take it down to the next level -- we're recommending a creation of a national operational panel that will deal with situations that require an understanding of how we enforce the laws. I testified last week on the anti-stalking bill in Ottawa, and we can pass all the laws we want in relation to a subject like that, but how are we going to enforce it? At 11 o'clock at night when somebody comes to the front counter or phones in, what happens?

We have to make sure that the police, whose job it is to enforce it, fully know all the powers they have under the Criminal Code, understand the powers of arrest, what we can do with peace bonds right now, what we can do in relation to questions of bail. How do we conduct bail hearings?

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There have been a couple of cases since I've got to this province that have involved what I think would be fairly called deficient procedure on bail hearings. So one of the things that we're recommending and we intend to do is to do just exactly that: have an operational panel, that is to say those people who actually do the work -- the working police, the working crown, justices of the peace, provincial court judges who actually do those hearings -- and figure out what are the best procedures that we use across the country and develop some national standards in relation to them. I can simply advise your committee, and I suppose the provincial government ultimately, your participation in that would be very helpful, because those are some of the ways that we'll actually get some things done. In one sense, it doesn't attract as much attention, necessarily, as an anti-stalking bill, but in the long run it may provide infinitely more protection.

I want to very quickly go through a couple of points, though, that I think are quite important in relation to current provincial areas of responsibility. Clearly, both the Attorney General and Solicitor General departments have the ability to influence what goes on on a day-to-day basis in the criminal justice system. From an Attorney General's department that makes a decision on second-offender notices, for example on repeat drunk drivers, obviously there's a real impact that the provincial department can have no matter what the Criminal Code says.

Similarly, a provincial Solicitor General's department that makes a determination of zero tolerance for individuals beating women or harassing women, or also indicates to be much more practical about it, we view this as a priority. When you get a complaint from somebody on what we would call a domestic breakup situation, we view that as a priority that you take the extra time to sit down and talk with that person and not simply hand the pen and paper and say, "You take the statement, you know, and let's see what happens out of it," because we may get better information. We may actually be able to provide something for the crown attorneys conducting bail hearings so that somebody who should be detained in custody on the secondary grounds is detained in custody.

I read of one case, or had it referred to me, actually, second hand. There was a complaint because the police, I think, were going to have to terminate surveillance on a woman's house who had been the subject of a series of complaints and she apparently felt, and the police agreed, that she needed pretty round-the-clock surveillance. Our response was, "Why was she in custody?" That was the effect of it: "Why was she in custody? Why wasn't he in custody if we felt that was so necessary?" So it is extremely important. It's the hands-on things that the province can do.

I very much am a believer in the quality of information as being a key to the quality of decision-making. I think the Jonathan Yeo inquest showed that as well. The Christopher Stephenson inquest showed that as well. But I suppose what it really comes down to is that, if I could put it this way, Ontario actually is a shining example of getting at the truth in instances that are sometimes embarrassing. I commend you to keep your system in the sense of having your coroner independent of your Attorney General.

I'm frankly ashamed to say that in my home province we have circumstances that here, I have no doubt, would have prompted a coroner's inquest. In Alberta we call them fatality inquiries. They are at the discretion of the Attorney General and we can't get them ordered. Similarly, I could provide you with and show you some physical examples of the federal government's policy in relation to openness and accountability; it isn't great.

Tomorrow morning I have to give a speech to all the wardens in Canada and all the National Parole Board members, and I'm planning on making the point with some of that material. I think it's going to be a quick appearance. But at least in Ontario there have been some significant understandings and access to information through the coroner's inquest process. The proposals that came out from the Solicitor General, I think two weeks ago, out of the Stephenson inquest are a testament to that.

So much of us, frankly, have a lot to learn from Ontario about that particular aspect, but I can't think of anything singularly more important than keeping the access to that kind of information available. I would say that specifically to victims, as I did earlier, about trying to make that system open so that people understand that it is in fact part of your job to explain what the hell is going on.

I used to try to say to people sometimes -- and I remember on one particular case sitting down explaining with the victim's family why I was going to take a plea on a manslaughter instead of on a second-degree murder charge, and explaining that the way our system worked, and I also happen to philosophically believe in -- it was my decision to make. That's what they paid me the money for. But I wanted to hear what they had to say. I was not going to somehow allow my decision-making to be done by other people, but I very much wanted to hear what they had to say.

That's the way, in my opinion at least, the system is supposed to work. It is not by any means an easy job, being a crown attorney, as I'm sure you can imagine, but you probably make it harder on yourself and the system itself suffers when victims are shut out of the process.

I actually have some thoughts about legal counsel in relation to victims, because one of the things that I found, frankly, nothing short of disgraceful of the federal government's conduct in the Stephenson case was the fact that all of our tax dollars went to pay for counsel for the National Parole Board of Canada and for Correctional Service Canada. The people who didn't get their counsel paid for were the Stephenson family. In fact -- he has since changed his view -- the Solicitor General at one point even said that he thought the family should trust the system.

That is still an issue before the Canadian Bar Association, but it strikes me that you could very easily amend your legislation -- I believe in Ontario it's the Coroners Act -- in a couple of ways. If somebody dies while he's in custody, by the way, there's an automatic inquiry -- and I believe it's so in Ontario; it is in Alberta -- into the circumstances, how the means of death came to be in the position to inflict death. My personal suggestion is that it's not a bad idea that if somebody who is out of custody who would otherwise be in custody is involved in the causation of death, the same thing should occur. Why not?

Secondly, I think there should be a recognition that people who are victims not only have status but have a right to state-funded counsel. I want to give you some suggestions a little bit about maybe how we can find some dollars to do it, because, as I think probably everybody, no matter what province you're from, recognizes, there's a dollar crunch in front of us.

One of the things that I think we take a little advantage of is -- as you know, there's no right as a generic right, at least not in any province I'm aware of; it may be different in Ontario -- for victims of crime for legal aid. That may be different here. However, that often is something that is very real. People require counsel and not just simply somebody who's been physically assaulted. If your home's broken into and you've suffered a whole lot of damage, you want to try to get some money back for what you've suffered. You'll know ultimately when you try to enforce that order, if one is made by the court -- guess what? You want to sue somebody? Get a lawyer and pay for it yourself.

My suggestion is that what we should perhaps be doing is looking at the victim fine surcharge, and instead of taking it through general revenue systems, why don't we create a separate account in legal aid, a separate victims' account in legal aid, that has access to those kinds of dollars? Make it self-funding. If the money comes through, the money comes through. If it's not there, it's not there.

I brought with me some legislation and I'm in the process, as part of what I do, of trying to collect the national area of activity in crimes compensation boards and victims' legislation across the country. The only one I was able to grab at the last moment was the one from Prince Edward Island. I have it here and it has some suggestions in relation to that as well. I'd be happy to supply that, following, to the committee. You may wish to take a look at that as well.

Secondly, there's a new bill pending before Parliament right now on proceeds of crime. As you may know, there's potentially a large amount of money. Right now, the federal government is sitting on about $65 million without a mechanism to return it. The question of course is going to be, who's going to get the money? My idea or my thought was that in reality the dollars seized -- obviously, it acts as some degree of deterrent, taking some of the profit out of crime. But also, it was to fight crime as well: Let's take the money from the people who have those proceeds and attempt to fight crime. You've got to appreciate that the proceeds of crime are more than just simply motor boats and machine guns; they also include investments in what would be otherwise called legitimate businesses.

The scheme that is currently proposed in the legislation -- I must admit, I had visions of the federal government running restaurant chains across the country because this actually involves -- you have to take assets and, logically so, you have to manage them in advance of conviction. I think there should be a tad more emphasis on disposal of assets and getting the dollars and putting them back into the hands of the police forces.

What I want to suggest to you as a provincial Legislature or members of a committee of the Legislature is that the question raging in Ottawa is, shall we give the money to the municipalities, to the police forces or back to the provinces? The general wisdom perceived is that we're going to have to give it to the provinces because they'd scream bloody murder if the money went somewhere to an area or a jurisdiction below provincial jurisdiction.

My suggestion is that maybe it's time we start to rethink some of the ways that we've already done things in this country, about how we efficiently spend dollars, because I'm sure you'll probably agree that the more stops that dollars like that make along the way, the more likely it is that there's going to be less to ultimately do the job in the end. I suspect that Canadians and people in this province would welcome that kind of pragmatism on the part of any government.

You'll see, in the material that's there, that we also made a recommendation in relation to costs against accused in certain circumstances. I think that is also money that could go into awards ultimately, crimes compensation boards or in relation to legal aid.

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Perhaps one of the largest ones, and if there's any defence counsel on the committee, you may not appreciate this -- one of the things that came out of the Stinchcombe case or a reality that came out of the Stinchcombe case that the last witness talked about, which is disclosure, is that I think we waste a tremendous amount of time and money in the criminal justice system today on unnecessary preliminary inquiries. Much of what preliminary inquiries were required to do was give, in effect, disclosure of the evidence to somebody facing an offence. It's now a constitutional right of an individual to have that disclosure. Plus, in our system, we have very wide penalties available so that, for example, on a commercial break and enter, you can get 14 years. Nobody gets 14 years on a commercial break and enter. Because of section 11, I believe, of the Charter of Rights or one of the subsections, if you're liable to imprisonment for five years or more, you have an automatic right to a judge-and-jury trial.

My suggestion is: Why don't we make it five years less a day? You don't have to worry about the judge-and-jury trial. We'll amend section 553 of the Criminal Code. Now, I appreciate the province can't do this, but amend section 553 of the Criminal Code, make it an absolute jurisdiction offence. In other words, it stays in provincial court. There's full disclosure as a result of Stinchcombe anyway, the penalty becomes less and we save time and money and, I suspect, a tremendous amount of money in legal aid budgets. I think we're going to have to come to those kinds of solutions to look for the dollars to be able to make some of the adjustments that we're speaking of here.

In relation to crime compensation, perhaps I can just close on this. Again, I have limited familiarity with your procedure. I can tell you that the couple of encounters I've had with people who are victims are not particularly positive. The response essentially has been, and again I suppose it's in the sense of the attitude that is conveyed by it -- there was a lady whom I had hoped to be able to bring with me; we weren't able to work it out. Her claim was originally lost when she first made it; she got back in touch and got it worked out.

Right in the body of the letter is the notation, "Because it can take from 6 to 18 months from receipt of a claim until you receive the order of the board, I would ask that you not call me about the progress of your claim for six months."

It's not the only one that I've encountered. Almost every single letter that comes out like that has something that says that: "I'd ask that you not call about the status of your claim."

With the greatest respect, this is not the swine flu control board. You're dealing with people who have been traumatized by crime, and the last thing they need is to have some kind of insensitivity displayed. Like it says, "Don't call us; we'll call you." Now, I appreciate that this board no doubt is backlogged. That may well be a commentary on the entire state of the criminal justice system, but that is not the appropriate attitude to take, and I would suggest that somebody, frankly, should be responsible for that. In much the same way, if there's a crown attorney that's not doing their job, they should be responsible for it.

I have gone rather quickly, but if there are any questions, I'd be happy to attempt to answer them.

The Chair: We have about nine minutes. We'll start with the government members first. Mr Winninger, three minutes or so.

Mr Winninger: I do have a question, but we started with the government last time.

The Chair: We did?

Mr Winninger: I'm happy to go again. We usually rotate.

The Chair: Mr Murphy then, go right ahead.

Mr Murphy: One of the things that I did before I came here was do some criminal work, and I did both crown attorney and defence counsel work, and one of the things I found was that especially, and this is more so in provincial court, but it's a victims' right bill in general and there's a whole gradation of offence in which frankly victims are treated badly.

The Chair: Mr Murphy, do you want to move closer to the microphone?

Mr Murphy: Sorry. One of the things that I found was often the case was that the preparation of witnesses, the counsel -- there was a lot of it that was left to the police forces. Crown attorneys, very often, provide the file the morning of the night before. It's not their fault; they're just too busy to do otherwise, especially in the provincial court jurisdiction.

I'm wondering, both in terms of the degree to which that becomes an obligation by default of the police forces, what you'd recommend in relation to that and also in terms of what you'd recommend, reflecting your experience as a crown yourself, in terms of how, given the resources the system has, we can more effectively manage that process so that some real attention is paid to the victims.

Mr Newark: My first point is if somebody had routinely handed me court briefs the morning of the trial or the night before the trial, they would have heard about it in spades or their detachment commander would have heard about it, because my experience is that all crown attorneys, the ones whom I dealt with, want to do a good job, and that's not a good recipe for doing a good job. And I don't think it's necessarily an answer to say, "Well, for example, in Toronto it's a big city; that kind of stuff happens."

There's also a lot more crown attorneys and there are a lot more police officers, but part of that is necessarily rethinking, and this is where the administration of both the Attorney General's department and police forces is involved, what our priorities are.

I use the same comment in relation to dollars. I don't think there's a new pot of money necessarily, but we have to rethink how we choose to spend our dollars, including, and to use the example of a police officer, recognizing that it's part of the police officer's job on the investigation to take the time to interview the witness so as to get an accurate -- not at the nanosecond of the police arrival -- statement from somebody. The one that I used in relation to a crown attorney, I very much was of the view that that was my job as a crown attorney, was to do that.

I have never been much of a fan of the approach that says, "Look, you know, we're all overworked." We all know we're overworked. I think you'll find that among police officers and crown attorneys as well, they're really not doing the job in most cases for the money, it's because they happen to believe that what they're doing is making a difference. It's using the time, I suppose, more intelligently and more productively with a focus towards victims' rights. I don't want to underestimate; that may well mean hiring more crown attorneys. That is quite conceivable. My suggestion is that if we're looking for dollars from that, streamlining the Criminal Code in relation to reducing legal aid budgets may be an appropriate source of funding.

Mr Murphy: If I can follow up --

The Chair: One quick question, Mr Murphy, otherwise we won't have enough time.

Mr Murphy: You focused on, and I think I agree with you, let's look at the enforcement, how are you going to do it. In the context of accountability for crown attorneys and perhaps even police forces in relation to dealing with victims, counselling, making sure they get the right story, making sure they understand what's going on, what do you see as the actual ways to enforce that for crown attorneys and police officers?

Mr Newark: I think I can probably best speak in relation to crown attorneys and not police officers, if you don't mind. I think obviously there has to be a political will on the part of the people running the department, and ultimately the minister, that this is important. The best thing, in my judgement, that will make that so is the notion of openness and access to information as to how a case is actually run.

It's very easy when you're dealing with somebody who is probably intimidated to begin with, because of the nature of the system, what's happened to them, to write a letter in legalese that doesn't really say very much. If you have a commitment at the top to having that kind of openness, you're going to go an awful long way there, which does sort of underscore the difficulty if all you're doing is having this as policy as opposed to law, although the law would have, as I see it, no particular sanction if a prosecutor violated it.

Mr Jackson: Thank you, Scott, and welcome. There was a reason why I requested that you and your organization be here. I've been very impressed with the work that you've been doing nationally and in your home province of Alberta and I've very much appreciated the occasions on which we've been able to talk about these issues.

You've covered so much in the course of your brief presentation, and there are a couple of areas I'd like to focus on. We're not going to have time, so what I'd like to talk to you about, if I could, is, the Attorney General was before us and indicated that victims' rights in many of its manifestations are highly symbolic, and we've received conflicting evidence of that. The Jonathan Yeo inquest specifically articulated the need for a victims' bill of rights. The previous deputant focused in on that as well. The minister did say however, though, that in Quebec their system was working.

We further went on in the course of that deliberation to discuss the revenue-generating techniques that our current legal systems have available to the provinces to implement but aren't necessarily taking full advantage of. I wonder if you could, with your national insights, help focus very directly for the committee on a couple of examples -- you did touch on them briefly -- of where there is revenue in the system that can be specifically directed towards victims and the services and, as well, the reforms necessary to bring the balance back into our judicial system.

Mr Newark: Yes, and perhaps what I can even do is leave with you the Prince Edward Island statute, Victims of Crime Act, and the attached regulations to it, if I can just ask the clerk to make a copy and send it back to my address.

In that legislation, what it directs is actually that the victim surcharges levied both under the code and in relation to -- they do it for provincial offences as well, and it goes into a separate account in the consolidated fund, with the money to be used for the victim programs. That is something that I'm not aware -- at least in my home province I don't believe that is so, in Alberta.

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I can also tell you that in Prince Edward Island they have a very, very similar statement of principles to the bill that's before the committee today. As principles, they're almost identical. They're actually not as thorough as the one that's in the bill here.

The other thing is that there is a victim services advisory committee that is established, and I think one of the principles that's quite good about it is that it includes somebody from the judiciary, crown attorneys, court clerks, probation services, law enforcement. In other words, it's a selection of individuals along the way. It says, "community organizations and the general public." I don't know. My hope would be that this would include victim organizations, because I think that would be a severe flaw if it didn't have that.

Again, I'm not familiar with your legislation, but I believe the upper limit in terms of compensation is higher than it is in Ontario. Perhaps the most germane principle is the one that seems to separate the dollars coming in and put it into something specific. That, in the very least, is an advancement.

Mr Jackson: Scott, pardon me for interrupting, but are you aware that some judges have gone so far as to suggest that it's inappropriate in their view to be charging the victims' surcharge if in fact the government in this province -- we're talking about judges in this jurisdiction of Ontario -- is not dedicating the revenues specifically to these services?

I know this would be a whole level of dialogue between what's occurring at the judicial level as opposed to -- but the process of not dedicating the revenues, the feds set up the blanket legislation, each province implements it, but they give them the right and responsibility to do that the way they see fit.

Mr Newark: I can give you three examples. Two are direct in my province. I've had judges say: "I'm not levying a tax on criminals. If the government wants to levy a specific tax, it can do it. I'm not going to collect it for them."

I was just in Nova Scotia and I'm aware of other judges in Nova Scotia, from conversations with them, who may not have used as colourful language but the sentiment is still the same. At least from what we would call hearsay, but other comments made to me, I'm aware that's the case of comments from the bench in this province as well.

Mr Winninger: Thank you, Mr Newark, for coming today and sharing your wisdom. Just a short response and a question. On the issue of preliminary hearings, from time to time it has been suggested that preliminary hearings be abolished, and certainly with fuller disclosure, the length of those preliminary hearings could be obviated, but you might agree with me that in many cases preliminary hearings actually prevent a trial from following.

Mr Newark: Yes, there are some that this occurs in. In fact the amendments specifically that we'd contemplated were not to abolish all preliminary inquiries. It was still in effect to leave the option for those to occur, but I was thinking about the much more routine ones in relation to the kinds of offences that --

Mr Winninger: I think I understand. Just moving along, you suggested earlier in your presentation that rather than introduce a victims' bill of rights, it might be more appropriate that the Attorney General has a policy that addresses those victim rights and has some meaningful enforcement of them. Just out of curiosity, I had a chart prepared which lists all of the rights and entitlements that exist in bills of rights for the provinces that have them. I notice Alberta isn't here, but I guess it doesn't have a bill of rights.

Mr Newark: Actually we do. Your chart's wrong. We do have a bill of rights.

Mr Winninger: Maybe the chart isn't complete yet, but it does have BC's, which is enacted but not proclaimed.

In any event, what I see here is that there are agencies in Ontario that are responsible for protecting the kinds of rights that are addressed in other provincial bills of rights and in some cases go beyond that, but the issue always is, are the employees in the agencies giving full effect to these principles and are these agencies represented across the province as opposed to a few of the larger centres? I think it's acknowledged that more work can be done in those areas.

You mentioned your concern about the Criminal Injuries Compensation Board and the kind of form letters going out suggesting that a victim wait six months for further news. That may be one example of where an agency perhaps isn't carrying out its mandate as effectively as it could, because we've heard there's a lot of trauma around these applications to the Criminal Injuries Compensation Board and perhaps a more timely response would be warranted.

The question I wanted to ask you, however, is this. Assuming that there was a fund to pay for legal aid for victims separate or out of consolidated revenues or what have you, I'm just wondering how far the role of the victim's lawyer would extend. Would it include cross-examining a criminal accused? Would it come in only after a conviction is registered, or would it be more passive than that? I'm just curious because I see us perhaps descending more into the realm of private justice as opposed to public justice, which we all have an interest in, as you said earlier.

Mr Newark: Well, if I can answer, and perhaps at first a comment as well too about whether it's best left in the sense of policy, my concern about that -- and I say this from having worked in a department that I'm sure had mountains and mountains of policy; I sometimes used to refer to them as the chains of command, as opposed to the chain of command -- as long as it's enforceable and as long as there is a consequence if you don't follow it, as long as people have access to the information and understand it, sure. Obviously, if you make it statutory, it gives it a greater sense of importance. But as long as that's there, whichever way works.

I think one of the very real things you want to try to avoid is the institutional self-interest, if I could put it that way, that tends to spring up within bureaucracies, either public or private, about protecting the interest of the bureaucracy as opposed to necessarily carrying out the mandate of what the bureaucracy is.

In relation to the comment about the Criminal Injuries Compensation Board, I must admit I would have used a little blunter term in describing whether they were fulfilling their mandate or not. That, to me, is somebody who doesn't understand his mandate who wrote that letter. However, to answer your final question -- and again I'm probably revealing my bias. It was funny. After I left working as a crown -- I'd worked for about 12 years, and it was not a particularly amicable parting of the ways -- I worked in private practice for about a month before I went off to Ottawa to do this. In the time frame that I was there, in a month, I had three people who were victims of crime privately approach me and ask if I would represent them. Personally, I think that's a disturbing trend. When I say "represent them," I don't mean represent in the sense of going and trying to sue or something like that, but it was literally to monitor the crown.

Personally, and again I appreciate my bias, I think a much preferable route is to make sure that our crown attorneys are doing the job that we want them to do, because I take your point that in the middle of a criminal trial, no, I don't think it is appropriate that there be someone else conducting the cross-examination of an accused person. In the middle of a criminal trial, the person conducting that should be the person representing all of the people of the province of Ontario, that is, the crown attorney. I appreciate that may not be shared by everybody, but that is essentially my view about the system, that we don't need to reject one of the cornerstones or the essence of the system; we need to fix it.

The Chair: Mr Newark, thank very much. We appreciate the presentation you have made. I think most members have found it very informative.

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CANADIANS AGAINST VIOLENCE

The Chair: Next is Debbie Mahaffy. Welcome, Debbie. You've seen more or less how the committee functions. If you would just give enough time for the members to ask questions, it would be useful.

Mrs Deborah Mahaffy: I kind of wish what I was going to say hadn't been passed out to you already, because in two minutes I think you have consumed it. I would like to thank Cam for giving me the chance to speak before you. As difficult as it may be at times, I think we have to give up a heck of a lot to try to teach others what being a victim is really like. I certainly never and you probably never thought that anything like this could happen to you. But it does happen. Learning how to live with it and how to cope with it is another thing that has no deadlines and no time on it.

Each of us is different, and I guess I should just say at the outset that I still am not yet back to work. There are days when I think I would like to be, but then there are days when -- I just call them now Leslie days. They're down days, I cannot go on and I am completely debilitated to do anything, and that even includes housework.

There are several topics I would like to mention. I've spoken to quite a few victims since June 1991 when Leslie died, and over 30 of these families I've spoken to, some out of the province, haven't been as lucky as I have been to receive the amount of counselling I have had the opportunity to have, or the treatment I've had from my community.

Immediately after a family is told that a loved one has been murdered, the victim's family slowly becomes emotionally, psychologically, physically and financially bankrupt. I would put it in that order, where we've pretty well accomplished everything and now we're looking at the bankrupt part. When you go from a two-paycheque family to a one-paycheque family, it's kind of difficult, and the other part is that I'm glad it was me who couldn't hold up my end of the budget, and not my husband. If that had been the case, our house would be gone.

I was very fortunate in that we were informed immediately of the Criminal Injuries Compensation Board and we did receive a pamphlet which outlined the basic guidelines and information. I, of course, didn't have much interest in it, but luckily my husband could take care of that and get it sent off. We can't remember where we received it from, whether it was victims' services, the funeral home or the police, but it certainly was one of those three that provided this pamphlet to us.

The other families I've talked to, especially 10 I can think of where we particularly got into the topic of the compensation board and the program -- three of those families each had a child who was murdered well over a year ago. They had heard nothing of the victims' compensation board and certainly had not applied. I provided them with both the telephone number and the address for them to contact.

Another mother I was speaking to recently was told, when she contacted the board to get her pamphlet or to get her information: "What you are feeling is normal grief. Therefore, you would not qualify for compensation." This mother had lost her daughter, who was 17 years old. She was murdered in her own home. The process of informing victims' families must be more clearly defined and carried out, and not left to chance and not left to this insensitivity of this particular person on the telephone. I'd like to ask that the Attorney General's office look at the definition of "normal grief." Surely, murder is not now considered in some way or in any case a normal way to die. Death by murder is never normal.

Yet in this country, grief and sorrow experienced are far more complicated by the nature of police routines, forensic routines, burial choices or lack thereof: Sometimes you're not allowed to cremate, and maybe that is your wish, to be cremated or to have your child or your father cremated, and that is very disturbing. The choices are few. Perhaps the press involvement also further complicates grief as well. As to the individual circumstances of murder, each circumstance, each murder is quite different, although to the surviving members there's no easy or uncomplicated way for their loved one to be murdered.

The guide from the compensation board also mentions that the board may compensate for funeral expenses. I would like to point out that the maximum dollars allowed for the funeral, for the burial, does not even cover a minimum burial or funeral. We certainly did not have an elaborate funeral for our daughter, and there certainly is a lot of outstanding cashing of bonds and whatever to pay for her funeral.

The remaining and several extra costs that are incurred at a time like that are left to the burden of the victim's family, through no fault of their own. It should be given that in the minimum compensation, there would be a marker provided for every victim. I can't imagine that a child or a relative or a loved one not at least have a marker, and there's no compensation for that or even a minimum towards it. Not having a marker or a burial, to be recompensated for those items -- those totals will not change. Those maximums remain the same. I wish that would be reimbursed right away.

The compensation board does not assist financially in counselling of members of victims' families. If counselling is not covered by OHIP, the family must pay the hourly fees, which begin in the range of around $70 an hour. I do know families in southern Ontario that are travelling over 80 miles for counselling, paying by the hour. They're not covered by OHIP and the husband is still not back to work.

I would like to recommend that this same government which pays for any counselling to the accused or convicted may also afford equal rights to us, the victims' families. If effective counselling cannot be found, or the costs make counselling cost-prohibitive, then the healing process is prolonged and perhaps the return to work is even delayed. Counselling for victims' family members should be considered compulsory, necessary unless refused by the victim's family member.

I think there are a very small number of people who can recover, who can deal with the grieving process of a murder without the help of a counsellor. Oftentimes, your counsellors may be your family members, and if that process breaks down, that connective work breaks down, then there's no one for counselling.

Loss of pay due to absence from work because of the death should be paid immediately upon the family member's return to work and with the appropriate documentation from the employer. I had a letter from my employer. I was on a contract to the end of December. I do not see any case why that could not have been paid right away. As to estimations from that point on -- I am a supply teacher -- how many days I may have worked could have been calculated on past employment and could be worked out later, but definitely the amount of pay that I would have received on contract could have been paid right away. Similarly, my husband missed, I don't know, approximately six weeks from work. When he went back to work at that time, I do feel that maybe that salary could have been recompensated to us. If he should have a relapse, then look at that when that happens.

The additional financial stress due to the loss of income further complicates and often retards the healing process as well.

In order that the Criminal Injuries Compensation Board be assured that funds would be available more readily to victims' families, the courts and judges therein must comply with and charge the surtax on all fines levied in the courts. The compensation board and the Attorney General should demand that this revenue go directly to victim services and not into the general melting pot of the Treasurer of Ontario to be spent on roads or hospitals etc. I guess we've heard that quite a bit.

I agree wholeheartedly with any proposal that would see that the perpetrator, once convicted of a crime, never receives any profits from the crime, be it by the sale of his or her recollections concerning the offence or interviews or public appearances that they may grant.

I would hope that the Attorney General would apply to a judge at the Supreme Court or district court for an order that such proceeds to be derived or proceeds that have been received by the perpetrator be forfeited to the crown to be used directly by and for victims' compensation.

You may be aware of my national petition asking for an amendment to the obscenity clause of the Criminal Code, specifically to prevent the undue exploitation of crime or the glorification, celebration and profiting from violence and crime; for example, murder especially. Any entrepreneurial gimmick based on murder and violence, whether it be killer trading cards, serial killer board games or video games -- to profit from murder is obscene in principle and does present a weak argument for the freedom of expression. To profit from crime, the murder\violation of another human being, is quite a repulsive reality in Canada, not only to those who have experienced the effects of murder directly, as we have, and the violence that others also are aware of, although have not experienced.

If profiting from sensationalizing, exploiting and glorifying murder and crime in the press, news media, books and movies cannot be declared obscene, and this country chooses to continue to sacrifice and make victims pay the ultimate price for this freedom of expression, then perhaps the Attorney General and the Finance minister should get involved and reap some of that profit.

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In the next paragraph I say, a little bit facetiously, that if everything produced in Canada has the PST and GST added, then I suggest that a VST be considered as well: a victims' services tax. If we can't have the profits from murder and crime being banned, then let's tax them, taxing the profits made because certain individuals have committed crimes which have inspired other individuals to create games, to write books and make movies which can be clearly classified as undue exploitation but still cannot be declared obscene. A VST of a sizeable amount would guarantee the compensation board income, and then perhaps in turn the victims of violence would receive realistic compensation and in a more appropriate time frame.

Last week when I was here, I certainly agreed with the comments from the Attorney General when she stated that in the budget there might be more emphasis put on the prevention end rather than the end result of the crime. After the crime is committed, the costs are horrendous. I ask that the Attorney General consider the forensic sciences budget. This is perhaps one place where, if there are proceeds floating around in revenue, they certainly should consider the forensic sciences budget.

The tests that are required to be done cannot be accomplished in a reasonable time frame because of staff and other shortages. With delays in waiting for forensic results, delays occur in court and court costs rise. The identification of sexual predators would be accomplished in a more acceptable time frame as well.

My daughter was murdered, unfortunately, for the entertainment of her killer or killers. I do not think her murder should, nor do I want her murder to entertain or profit anyone else in any way in any country. There is no comfort or privacy in knowing that others can violate our family further without our knowledge or permission. I worry and am concerned for my daughter's friends, for my son. It is just a matter of time before her friends or he will be able to rent a video, read a book or watch a movie made for TV about her murder. I might add there as well that you can change the names, you can change the places, but everyone will know who we're talking about.

The courts and the justice system provide little privacy for the families of victims and the accused. Recently, more people have taken advantage of the right to present a victim impact statement that could be read into the court record prior to sentencing and also at a parole hearing. I thought it was progress. I am having second thoughts now, when I'm in that position. The intimate details that would be contained in a truly from-the-heart impact statement would become the fodder for any and all insensitive authors or movie directors to twist, embellish and exploit, all in the name of entertainment and the freedom of expression.

I've had a great deal of difficulty writing an impact statement. Each time I do, where do you start? Some of the things that I feel greatly impacted by and got down on paper very quickly are the things that I also would not like to read in a book or see in a movie.

If any case involves a sexual assault charge, I do not think accuseds' names or pictures or victims' names or photographs should be published before the case has been dispensed by the courts. I would like to see legislation amended so that the adminstration of justice would not be hampered by the intrusion of the press or by any private business or by any individual. Privacy is one aspect of a victims' bill of rights that is of tantamount importance, but in reality, almost impossible to guarantee unless the issue of privacy is emphasized in legislation.

It is alarming to know that, had my daughter survived her ordeal, she would have been protected, no name published. Her younger brother and her friends, all minors, would not be known to the public, and all of our family would have been protected and given privacy. That right to that privacy should not die with her.

The trauma experienced by her family -- our family -- the trauma of every victim's family, deserves to be recognized by the justice system, and that is by affording us some privacy.

I am not, nor is any victim's family, asking for more rights. We are all asking for rights that we've never had. Victims have faces and names, as does the perpetrator, and we should have at least equal rights to the perpetrator. Thank you.

The Chair: Thank you, Debbie. Mr Jackson, we'll start with you.

Mr Jackson: Debbie, thank you very much for coming today. I know that when we first approached you about coming, you had very strong mixed emotions about coming today and that is becoming self-evident. But what may not become self-evident is that the issues you've raised about victimization -- you are only partway through the process, whereas some of the victims who've been before us are further along or have completed the system's treatment. I use that word loosely.

I'd like to explore your concerns about your surviving sibling, your son Ryan, and what life's going to be like for a younger brother and a family member. I know that's difficult and I know I have your permission to raise it. I think it's very important that the committee understands that you're an adult and a mother. You'll be able to deal with some aspects of what you're about to deal with later this month, as a matter of fact, in our court system, but your son Ryan doesn't necessarily have the same choice.

Mrs Mahaffy: No, he doesn't. We had tried right from the very beginning to protect him from a lot of the details that we knew about her death. He is only nine years old and he does go to a psychiatrist. I work with her to try to help him with the details that we know up to now. Basically my son and I now have an agreement that when he's old enough to ask the question, then he's old enough for the answer.

I've learned that from the police. They've pretty well treated us the same way I think. When I'm ready for the answer, I'll ask the appropriate question. This is a little person who -- I find myself in a situation that now I have no control over his questions or over the information that will be made public.

During one conversation with him I asked him, "It sounds like you do have a question," and he said, "Yes, I do." "Do you want to ask it now? Do you want the long answer, the short answer or the middle-sized answer?" His response was: "No, mom, I'm not ready to ask the question yet. I'm not ready for the answer."

For a boy who does not travel freely in his own home, who is not able to have a shower in a shower stall unless I am in the vanity area of the washroom because of faces looking in the shower; for a boy who cannot go up to his own bedroom, second- floor house, he's too nervous; for a little boy who cannot go to the basement of his own house alone, these are just some of the things. We have not even dealt with what's yet to come.

There have been incidents. The school has been wonderfully supportive in talking to the principal, talking to his teacher, and the principal speaking with the staff in trying again to protect him just from general conversations of other children. Certainly the dinner table conversations I have no control over in anybody's house. What other children will learn in their house will affect my son. I don't think he is emotionally or psychologically ready to hear anything at the point that we're at now.

Mr Jackson: I know this is very difficult for you. I know there are many things you'd like to share with this committee that you can't at the moment. One of the issues I'd like to pursue is that initially your reaction about the media and the intrusions to your family was a very serious issue and nothing had prepared you for what was about to happen there.

There has been an interim order placed by the judge, but it would appear that the American media won't have to honour that. Our investigations into this matter will be sufficient for the Americans to report aspects of the case. They will have deemed to have broken the law when they cross back into Canada, since this case will be tried in a Niagara Falls court.

Did you want to share a concern with the committee with respect to how far our courts may or may not go with respect to understanding and respecting the concept of your need as a family for privacy?

Mrs Mahaffy: I think there's a lot of interest at stake in this case and I think it's of ultimate importance that justice be served. To do that and to do that guaranteed, that justice be served, it looks as though my rights will have to be sacrificed. It is of great concern to me that another country would not consider and stand by and comply with our laws. I think that's probably about all I can say at this point.

Mr Jackson: Okay. Thank you very much.

The Chair: Do you want to ask one more question, Mr Jackson?

Mr Jackson: No, Mr Chairman, I have had occasion to spend a fair bit of time with Mrs Mahaffy on her concerns and I would like to allow the other members of the committee an opportunity that they wouldn't otherwise have.

The Chair: Very well. Thank you. Mr Winninger?

Mr Winninger: Just briefly, thank you for your helpful suggestions today. You made a general comment about victim impact statements. I would be very concerned if victim impact statements did not come before a judge because of a concern about privacy, because I think they play a very unique role in sensitizing the judge to the impact on the victim before sentencing or disposition. I'm wondering whether the kind of order for a ban on publication of evidence during the trial and whether an order sealing the record would go a long way to meet your concerns and ensure that the relevant evidence did go before the judge.

Mrs Mahaffy: I think there might be a way to work that out. I have to leave that to others as well. Certainly it is important to make the statement and to have it there at the time of sentencing, but I also recognize that at the end of the case, if a ban is put on, if the ban is lifted, then access is afforded to anyone to the court record, and that is a concern to me. If there's a way that a judge can protect that information, I certainly would be very interested.

Mr Noel Duignan (Halton North): Just very briefly, I think we all can sympathize with what you're going to experience beginning this month, but the problem I have is that when it's all over, it's not over.

Mrs Mahaffy: No, it's never.

Mr Duignan: From video rights to movie rights and to this particular company in California that produces these cards. I have a real problem with this company. I've written that I'm really opposed to it, and they take delight in writing back to you and saying "freedom of expression" etc. They even in fact have me on their mailing list and won't take me off. Every time they put out a new series of cards they write me and give me this letter saying, "Look what we're doing now." I think that tells you something about society and I'm really, really opposed. We need to do something about that, what I don't know.

Mrs Mahaffy: They're now producing cards that are of accused. There's a Canadian who has not even been convicted already that's on the card. But I think this is not about the freedom of expression as much as it is the freedom to make money, the freedom to profit. I think that's really what the argument is about.

I don't know how that petition is doing right now in Parliament. It was sort of very positively talked about a month ago, that legislation would be amended in the obscenity clause to at least help out in the area of the undue exploitation of crime and horror and to take out the separation of the sex from the violence. I don't know how that's doing, but even if it doesn't pass the charter challenge, to me I think there's no better issue to challenge the charter on than the issue of obscenity, and if that's the way it goes --

Mr Duignan: I know I was really offended when I got the letter from that particular company with the latest cards. That goes beyond --

Mrs Mahaffy: I guess you've seen the cards of the hologram electric chair and the Rodney King beating card as well?

Mr Duignan: Yes, that's just --

Mrs Mahaffy: What's next? A gang rape?

Mr Duignan: It's incredible.

Mrs Mahaffy: That's right. I'm afraid we don't need to emphasize our negative human qualities to the extent that we are by perpetuating this violence. I think when we start producing trashy novels or sensationalizing in this way, we are also perpetuating violence.

Mr Duignan: I couldn't agree with you more.

The Chair: Mrs Mahaffy, we know how painful it must be for you to talk about the tragedy that's befallen you and your family and we all empathize with your suffering.

Mrs Mahaffy: Thank you.

The Chair: We thank you for coming and talking about your personal experience.

Mrs Mahaffy: Thanks.

The Chair: Unless there are any other matters, we'll adjourn.

The committee adjourned at 1735.