CANADIANS AGAINST VIOLENCE EVERYWHERE ADVOCATING ITS TERMINATION
CONTENTS
Monday 31 May 1993
Victims of crime
Canadians Against Violence Everywhere Advocating its Termination
Glenn Roche, director
Priscilla de Villiers, president
London Family Court Clinic
Louise Sas, director
Alison Hatch Cunningham, coordinator, child witness research
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Marchese, Rosario (Fort York 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:
Jackson, Cameron (Burlington South/-Sud PC) for Mr Harnick
Martin, Tony (Sault Ste Marie ND) for Mr Duignan
Wiseman, Jim (Durham West/-Ouest ND) for Ms Harrington
Also taking part / Autres participants et participantes:
Cunningham, Dianne (London North/-Nord PC)
Clerk / Greffière: Freedman, Lisa
Staff / Personnel: McNaught, Andrew, research officer, Legislative Research Service
The committee met at 1534 in committee room 2.
VICTIMS OF CRIME
Consideration of the designated matter pursuant to standing order 125, relating to victims of crime.
The Chair (Mr Rosario Marchese): I'd like to call the meeting to order. We have a quorum. I should point out to the members that Trisha St Alban has cancelled out, so the other two people who are here are ready to go.
CANADIANS AGAINST VIOLENCE EVERYWHERE ADVOCATING ITS TERMINATION
The Chair: I would like to invite Mrs de Villiers and Glenn Roche to come forward. Welcome to this committee.
Mr Glenn Roche: Thank you.
The Chair: You know that we have 45 minutes for your presentation and you may want to divide your time in order to give members an opportunity to ask you questions later on, so you can begin, either of you.
Mrs Priscilla de Villiers: On August 9, 1991, my daughter Nina disappeared. She had been jogging near the fitness club that our family had belonged to for 10 years. Nine days later, her body was found in a creek near Napanee. She had been shot in the head, executed coldly, randomly and calculatedly. Without warning, my family, friends and community were embroiled in the horrors of a brutal murder and the machinery of the criminal justice system in Ontario.
Her murderer was identified as Jonathan Yeo, a man out on bail for the sexual assault of a woman, with two weapons, and uttering death threats. He had attempted to breach bail by leaving Canada and going to Florida, but had been stopped at the border by the US Immigration and Naturalization Service. He was carrying a weapon, the same weapon used in the assault, live ammunition, a suicidal note and his bail release form. Neither Canada Customs, Canada Employment and Immigration, the Niagara Regional Police nor the Hamilton-Wentworth Regional Police felt they had the right to confiscate the gun, his ammunition, nor to arrest him for attempting to breach bail. The rights of the individual to free movement and to possess a weapon, in spite of the charges against him, far outweighed any consideration of the protection of society.
It was apparent to my husband and to me, and to the community at large, that there were serious questions to be asked about the administration of criminal justice in Ontario, although at this point we had no idea of the full enormity of the problem.
As victims, however, once the Halton police had concluded their part of the investigation, we had no contact with any government official, in spite of the extensive media coverage. In fact, the few pronouncements made by the Attorney General's office were published in the Toronto Sun and brought to our attention by a reporter with that newspaper. Those comments about the conduct of the bail hearing were not only inaccurate, but patently untrue. Mr Howard Hampton, then the Attorney General of Ontario, later confirmed these statements on a radio interview and suggested that the federal government makes the laws; Ontario merely enforces them.
It seemed to us at the time that urgent questions needed to be asked, but the doors had clanged shut on Ontario's role in the administration of justice. There was no accountability and no standard of voluntary self-examination or mechanism for the victim or the community to demand explanation. We learned first hand that in the midst of terror, horror and unimaginable grief and pain, the very system that we have supported and paid for as law-abiding taxpayers showed little or no concern for our needs.
As victims, we had no persona, we had no face. Nina's death was sensational at the time, and yet we received little consideration as victims. What consideration, then, can the equally tragic, less publicized cases expect? All the programs, services and vast funding are focused on the defendant. There is little offered to the victim, and the little that is available is haphazard and underfunded.
It was out of this frustration and betrayal that we tabled a petition in the House of Commons, in which we ask, among other things, that crimes of violence against the person be recognized as abhorrent, that agents of the crown be held accountable, and that it be recognized that the rights of the risk to society posed by the early release of a violent offender appears secondary to the rights of the individual.
That petition is still running. We've collected 1.6 million signatures nationally to date and will present it to the next Prime Minister. CAVEAT arose out of the circulation of this petition and the obvious need for a mechanism for the people of Canada to voice their concerns and for victims to demand an equal role in the justice system.
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It would seem that a victims' rights bill would be redundant in Ontario. On March 17, 1988, in Saskatoon there was a federal-provincial-territorial agreement on statement of principles for victims of crime, which would guide the ministers responsible for criminal justice in promoting justice, fair treatment and provision for assistance to victims of crime.
Victims' rights, too, should be covered by the charter, section 7, "Everyone has the right to life, liberty and security of person." It's clear, however, that it's just as necessary to state that victims have a place in the justice system and identify them to give them standing as it was to include section 28, in which women are specifically identified to be given equal standing.
We are told by defence attorneys, who are agents of the court: "You are not, as victims, a party to the justice system. The people, the defendant and the court officers are party to the justice system." In fact, the parole board identifies the victims as observers, not intimates to the process, but on the outside, looking in.
One of the reasons that the victim's role has degenerated to such a point is that the victim has not historically had an advocate to maintain the balance. It's ironic that the defendant, by his actions, chooses the path that leads to the justice system. The victim, without choice, is no less intimately involved and yet is invisible, a forgotten party.
Starting in April 1992, the inquest into the death of Jonathan Yeo, over four months, exhaustively examined many of the facets of the administration of justice in Ontario. Many serious questions were raised, which resulted in 137 recommendations being made which would hopefully improve a seriously flawed system. But it was the parade of witnesses that spanned an 11-year period who painted the most damning picture of just how inimical victims find the system at every level.
The result is that those more vulnerable members of society, who most need the protection of the state, are terrified of the interrogation and the humiliation which the process involves, and therefore do not lay charges. The overwhelming impression was that the justice system favours the interests of the accused at the expense of society. An even more sinister result of this reluctance to lay charges was that an extremely dangerous man went undetected for 11 years, while his level of violence escalated.
The jury in the Yeo inquest recommended a charter of rights for victims after hearing the victims' testimony -- see my enclosure. It is in the victims' assistance and criminal injuries compensation that the victim's plight is clearly seen.
The balance of our presentation, focusing on services and programs for victims, will be delivered by Glenn Roche. Glenn is a director of CAVEAT and a victim whose sister was murdered in March 1990, also by a long-term, violent offender out on bail at the time.
Mr Roche: Thank you. My sister Ann was killed by David Faulds, a man with a long record of violent offences against society, a man who had been a patient at the institute for the psychiatric or criminally insane in Saskatchewan, who was at this time released on bail.
It was a tragedy our family felt could have been avoided. It is also after that when we found out where our difficulties were just beginning, and this was in the issue of programs and assistance available to victims of crime. In my experience, after the murder of my sister in March 1990, these programs have been ineffective, extremely difficult to access or non-existent.
This began with notification of the homicide. I was contacted by phone at work by the Niagara Regional Police and told my sister had been strangled and assaulted. This was the first and only contact I had from the justice system until the crown contacted me regarding a plea bargain they were about to accept. Although a victim services program was operating in Peel, where my sister was killed, I never was contacted. Unlike the offender, no police or crown agent gave me any information or advised me of any rights or services available to me.
I applied to the Criminal Injuries Compensation Board on behalf of my sister's two children, aged five and six at the time. I was strongly discouraged from pursuing this application, both by phone and letter, and I have an attachment to that. Recognizing I would have a difficult task, I investigated legal aid to help present our case by hiring a lawyer. Although the offender had two lawyers representing him from legal aid, we, the victims, were denied that right.
The agency established by government to assist victims, the criminal injuries board, has, to the contrary, been a source of aggravation to victims because of its methods. This can be supported by using my case as an example, as the following facts are not an anomaly to us but standard practice by the board.
Victims must wait approximately one and a half years to be advised of a hearing date. Following the hearing, there is another four-month wait to be advised of the decision; 10 weeks after being advised of the fact that they have made a decision, you will be told what it is and awarded compensation, if that is what the decision provided. These time lines produce economic and emotional hardship in victims by keeping the trauma in front of them for two years.
I also discovered that the minister responsible, the Honourable Marion Boyd, is not at all aware of this situation, as illustrated in her letter attached. Note she expects a decision in April from my hearing in March. Would that it were true.
The board's guidelines for compensation also contribute to revictimization. They do not award compensation by the type of crime but by the nature of the injury. In our case, we were denied compensation for pain and suffering because we did not prove, to quote from their letter, "suffering which would be beyond the normal in the death of a loved one." Proof is evidenced by the written report of a professional counsellor. To anyone but the board, this test, in its insensitivity and even inhumanity to families of homicide victims, is shameful to both the government which allows it and the board that enforces it.
Finally, the issue of economic loss to families in a homicide: We, like so many others, were denied compensation for economic loss because my sister was a student at the time of her death. No pay, no worth, was the attitude of the board, as attached. It does not seem possible that this test could survive in this day of women's issues and the emphasis this government has adopted to bring equity to women. It is a glaring incongruity that the Honourable Marion Boyd has both the responsibility for women's issues and this board guideline for compensation. Statistics Canada has been able to assess the value of a homemaker. Why can't the board?
As a last note, the Ombudsman saw nothing wrong with the board's guidelines or legal aid's refusal and declined to help. I was only successful in furthering my case by going to the media.
In response to my letter, on April 26 this year Mrs Calder, the chair of the board, put a "rush" on my decision. It will now be June tomorrow and I am still waiting.
Conclusion? As victims, what we really are requesting is simple justice in the form of parity with the offender in the legal system. We expect nothing more and should not have to accept anything less.
Mrs de Villiers: It is often critical for the safety of a victim of violent crime to be informed whenever the defendant is not in secure custody. It is, however, a hollow right if it is not made readily understandable and available to the victim. Throughout the Yeo inquest, the Stephenson inquest, the Conter inquest and the recent federal-provincial crime prevention meeting, lack of communication has been cited at every level.
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The rights and procedures open to victims must be described in simple, understandable terms in the major languages, with a designated source that will supply this information. In 1992, the Supreme Court redressed the empty right of the offender to have a lawyer if he did not know how to get one.
In 1992 the Supreme Court redressed the empty right of the offender to have a lawyer if he did not know how to get one. It was clearly stated that the police are obliged to supply the necessary phone number and that there has to be a duty counsel available. Victims' rights should be just as clear.
Communication is all that is needed in the laying of charges. Victims have never been consulted on this, nor would it be correct for the victim to be involved. However, the victim's right to be advised of the charges should be documented. Victims should also be told about the court process. In some jurisdictions this is in place, but again on a sporadic basis. There's a need for clearly defined standards. The victim should have a contact person who will follow the process. In South Carolina, there's a move to appoint a facilitator to the victims of violent crime to guide them through the process as the defence lawyer does for his client.
It's apparent that the services offered to victims are not uniform across the province, nor is there any apparent control or organization of overlapping services. It seems that in the midst of an economic recession, we could streamline the services available and apply the revenue saved elsewhere. In the Yeo inquest, the need was identified for a 1-800 number which could act as an information centre for the policeman in a small force in need of expert advice or for the victims who regularly phone CAVEAT in desperate need of professional help.
There are also valuable data banks, studies and programs which should be made available to utilize other experience and ideas. This too could be part of the centralized information service.
It is naïve to think that in this economic climate, additional funding will be afforded to victims. In the Police Services Act, victims' rights are affirmed, but although approximately $5.8 million was dedicated to undue use of force and employment equity described in the act, no money was voted for victims' rights. In fact, Hamilton-Wentworth Victims' Services lost their funding last year.
Apart from streamlining existing programs, additional revenue could be saved in legal aid if we could curtail the number of frivolous lawsuits brought by inmates challenging the charter. This could be accomplished by establishing a program of user fees proportionate to their income. A prime example of this abuse of the system is Clifford Olsen, who has brought up to 23 suits against the government to date.
Of course the most obvious source of revenue is the surcharge for crime victims. It's obviously not being uniformly applied in Ontario. If it were levied uniformly in all courts and applied to a victims' fund, then the judges and the public alike would have more confidence in the system and there would be accountability as to its application. It would also fit in with the current thinking on alternative methods of sentencing.
The needs of the victim of sexual assault seem to be more widely understood now. However, this too is dependent on the jurisdiction. We have been encouraged by the response by police forces in our area after the recommendations of the inquest into the death of Jonathan Yeo. The inquest pointed out the need for standards to be set at all levels so that there is a more uniform approach across the province. The level of sensitivity would hopefully improve and increase confidence in the system. Expectations of the victim and the public too would be more realistic.
We conclude with a quote from the foreword of the British Charter of Rights for Victims of Crime, 1990:
"In the past, the victim of crime has been described as the forgotten woman or man of the criminal justice system. This verdict was unfair -- those working in and with the system have always tried to help the victim. What the charter does, however, for the first time is to set out legitimate rights and expectations. This will be a major advance in giving sympathy for victims more practical expression, and in making sure that victims are treated in the same way in whichever part of the country they suffer from crime."
Can Ontario do less?
Mr Roche: Our recommendations:
(1) A victim assistance package or information line should be provided by the police in the case of violent crime.
(2) Legal counsel should be provided to victims, or the information on its availability, like the lawyer referral service currently set up in Ontario.
(3) The Criminal Injuries Compensation Board should revise its guidelines for compensation. Note the attached, civil court guidelines versus criminal injuries board. Its time lines for notification and hearings should also be revised. Possibly there should be a priority basis according to the type of crime. Note: These guidelines that this board now uses are not legislated but arbitrarily adopted by the board.
(4) It is now accepted as fact in court that sexual abuse and assault cause serious harm to victims. It should also be accepted by the criminal injuries board as fact that homicide causes serious harm to families.
(5) There should be a study done on the efficacy of the Ombudsman's office, and funding should be diverted from here to victims' assistance if the results so warrant.
(6) Where the will of the people is not reflected in the interpretation or the changes in law imposed by judges, then section 33 of the charter should be invoked to preserve the law as supported by the people. This would allow a review of the law as prescribed by the court, but with the Legislature, not the judges, being the final lawmaker.
(7) We need a mechanism for independent evaluation of agents of the crown and their departments. There should be clearly defined responsibility and accountability in the administration of justice.
(8) The accountability of the parole board to victims and to the public could be accomplished by the expansion of the appeal process for parole decisions to include victims and the public, not just the offender.
(9) A charter of rights should be established for victims of crime.
(10) The victim should be informed whenever the offender is not in secure custody, for their personal safety.
(11) Rights and procedures of the courts should be described in simple understandable terms in the major languages, with a designated source to supply this information.
(12) There should be clearly defined standards of communication and services to victims which apply to the entire province.
(13) The communication between departments of justice and mental health institutions, federally, provincially and regionally, should be a priority.
(14) Protection of society should be the paramount factor in every decision made or action taken by the justice system and its agents.
The Chair: Thank you both.
Mr Cameron Jackson (Burlington South): Glenn, Priscilla, thank you very much for a very thoughtful presentation and one which only covered, I know, about a third of the areas you would have liked to have covered, but for the interests of time.
At the outset, let me say that when we put forward those persons we would like to hear from, we indicated we wanted to try to give you 45 minutes -- and some are given only 20 minutes -- out of respect for the kind of work that you've been doing and also to provide enough time for the committee to get into some in-depth questions, in particular, Priscilla, around the Jonathan Yeo inquest. Those who were unfamiliar with the system in Ontario were very shocked to learn that bail was granted so quickly and so easily and without an advocate for the victim, who did survive, thank God, Jonathan Yeo's attack and threats on her life.
Priscilla, perhaps you might share with the committee some of the areas within the inquest beyond recommendation 128, I believe it is, which clearly indicates that a victims' bill of rights should occur in Ontario as it has occurred in nine other provinces in Canada and, as you've indicated in your brief, was first established federally as a guideline. The first province was Manitoba, but we're one of the last two provinces not to have one. Would you like to highlight some of the additional areas of reform? Or we could just talk about victim's impact statement on bail, if we wanted to focus in that area.
Mrs de Villiers: I was just thinking of where we should start, quite honestly. To give you a little bit of background, the inquest went right back to Jonathan Yeo's childhood and started focusing, for about five weeks, on a series of young women who'd been attacked over the years by him in various ways.
As each young woman took the stand and the court saw her shaking and crying and having to be taken out and revived, some of them 11 years after the event, a very senior member of the Ontario Attorney General's office, who is a criminal lawyer, said to me, "This has been a revelation." It was the best and worst exposure of how the victim has been -- I hate the word "revictimization," because it diminishes what has happened to people who really feel that the system is not open to them.
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One young woman, who was 17 when she was attacked by Jonathan Yeo, had seen her mother take her stepfather to court in an effort to deal with an abusive relationship, and she'd been so badly treated in court that this young woman had never disclosed until she saw my daughter's picture in the newspaper. She felt personally responsible because she had not disclosed what had happened to her 11 years ago.
She was told that she needed help. She said how would she find this help? We offered her various solutions and she was one of the girls who came up with this idea that if there were a recognizable source for victims, such as a 1-800 number, like 911 or something, where you could phone and be sure that you could get the sort of help you need or advice that you need or counselling that you need at the time, this would be a help.
One young woman very bravely tried her best to lay charges. She was actually Sheila Yeo's best friend; she had been her friend since grade-school days. Jonathan Yeo broke into her house, held a knife to her throat when she was sleeping, cut her telephone cord and she eventually ran out of the house in terror. When the police came, he was playing with toys and splashing in the pond and pretending to be unbalanced. She decided that she had to first of all warn Sheila and then lay charges.
First of all, she was threatened by Sheila that she would in fact go to the authorities and say that this girl had been dealing drugs, to prevent her from laying charges. That was the first thing. The next thing that happened, she actually went with her father, took a day off work, went down to the crown attorney's office in St Catharines, spent a whole day trying to lay charges and was talked out of it by the crown. So here we had one young woman who was prepared to pursue it. She and her father both lost a day's salary at Dofasco and yet they were not encouraged to do it.
We had the most dreadful account of Sheila Yeo's cousin, whom Jonathan Yeo one morning tied up and raped. This girl was taken to McMaster University hospital and the sexual assault centre was called in. She was fed a mine of misinformation and it affected her to such an extent that she could not have laid charges after that. The family then, to mitigate it against her -- she was not at any point at that stage offered recourse to the police or a chance to think it over; in fact she was just fed misinformation. Some counsellors are excellent; some are not. This became more and more apparent as the expert witness continued. There are very, very sporadic and uncontrolled services offered.
I've just heard about a 12-year-old girl who had an excellent experience in the same hospital. She was raped, but she received such excellent care from the police onwards that she has successfully laid charges and in fact a conviction has been obtained. The difference between the two was enormous. This is why I feel we have to look very seriously at that.
One thing that was absolutely apparent throughout the entire four months I sat in the courtroom was this question of honest bewilderment on the part of the officials in the various levels of the department of the justice system. The police really felt that it was more than their jobs were worth to arrest Jonathan Yeo. It was unfortunate that they didn't know about section 524 of the Criminal Code, which in fact gave them the right to arrest, and it's also unfortunate because it was a question in the detectives' training paper at the police college.
However, there was an honest bewilderment. The Canada Customs and Immigration officers -- I know that's not provincial -- also expressed this idea that Jonathan Yeo had not left Canada and therefore he was still a Canadian citizen and had the right to move around freely and there was no reason for them to seize his gun, even though he had live ammunition and he was out for violent assault. There was this honest expression of the rights of the individual.
In fact, the US immigration officer was the most effective of all. He did everything he could to persuade them to at least separate Yeo from his gun. He said, "This is a very dangerous man." When Jonathan Yeo turned and went back across the bridge, Canada immigration and customs cleared the bridge. They all went into the customs house. When the immigration officer was asked why he stood eight feet back from the car and waved Yeo back into Canada and put his officers in the office, he said, "Because I was frightened for their safety." But he could not offer, when he was asked, any reason why he was not frightened for the safety of Canada.
I thought about this long and hard. I thought, "How have we got to the stage where the rest of society" -- and we've paid very dearly for an extremely expensive and unwieldy justice system, federally and provincially; we in Canada believe in law and order and justice and in not carrying a gun to protect yourself -- "how have we got to the stage that the security of the vulnerable members of our society is of so little account?"
I decided that it's because the other person in the court, the other party in the court, has been forgotten. This idea of the might of the state going against one helpless individual has grown to such proportions and there's such a horror of possibly detaining one person unnecessarily that the victims and the potential victims have been forgotten.
It appears absolutely clear to me that it is time that we document the fact that there is such a person as a victim and that we delineate their rights and freedoms and we delineate their place in the process. Hopefully, in doing that we will establish this balance of rights again, because every person in this room, believe me, is a potential victim. We have become forgotten in this system, in our zeal for compassion to the underdog. Not that for one minute I would like to go back to the old ways of locking people up and throwing away the key, not at all, but we have to re-establish that balance. The only way I see it is by creating this persona.
Mr Jackson: Mr Chairman, I realize that time is of the essence here. I will yield, but I am willing to yield some of my time that is allocated to me for my presentation after the other members of the committee have finished with their questioning.
The Chair: Let's see how it goes, then.
Mr David Winninger (London South): Just briefly, I'd like to thank both of you for coming here today and sharing your experience with the committee. While some of the initiatives that have been taken under other provincial victims' bills of rights exist in Ontario, there's clearly much work to be done.
I just wanted to add that there was reference made to a letter signed by the Attorney General being attached to your presentation. I haven't found it yet.
Mr Roche: No, I'm still looking for it too. When I get it, I'm going to send it in.
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Mr Tim Murphy (St George-St David): I too want to thank you very much for the kind and thoughtful presentation. I have to say that I agree with your central thesis that victims are often ignored in the process. I, in my life prior to politics, was a lawyer and acted both as defence counsel and, occasionally, as an acting crown attorney. I must say that it was very often my experience in the system, in both branches of the criminal justice system, that the victim was the last person thought of. I think the direction that we're heading in and even these hearings themselves are part of the process of building up a recognition that we have to pay attention to the victim in the system.
I wanted to focus on a couple of things that you mention in your brief. You said that your organization, CAVEAT, has received a number of calls from victims. I wonder if you'd just briefly outline for us -- without identifying individuals, obviously -- some of the kinds of things and the concerns that were expressed and what they were looking for and the needs that you see arising out of the calls you've received.
Mrs de Villiers: It started within three days of my daughter disappearing. I have received a large number of calls of people in desperate need of psychiatric help. Psychiatric services are woefully lacking, and in victims of violent crime, particularly where there's homicide involved, it's a very specialized area, I gather. We in CAVEAT don't for one minute pretend to be counsellors. All we can do is pull in our resources and try to find information, try to find a place to put these people. When they phone they're in desperate straits. That's the first thing.
We have more and more people who have been embroiled in the justice system, and it's a double bereavement for people because on the first hand you've been terribly hurt by something outside your control. Comparisons are odious, but the community around me is still so wonderful to me and the incredibly cold lack of interest that was shown by everybody involved in the justice system by contrast is just odious.
You have people deeply hurt who are in desperate need of just speaking to a lawyer, and very often it's a misunderstanding or they have unrealistic expectations or they genuinely need to go on to another step. But most of these people do not have the resources, and this is something I discovered at first hand in the inquest, and another day and another time I'll tell you all the financial woes involved in getting legal help. These are very often parents, as I was -- or a brother or a sister -- who are not primary victims but who also have a bearing on the system. Then we have people who need social service and people who are desperately in need of money, and they need it immediately. There's a wide range.
Mr Murphy: I'm wondering, if I could follow up, you mentioned in the brief a lawyer referral service as a kind of thing. I was and I think, Glenn, you did --
Mr Roche: Yes.
Mr Murphy: When I participated in that service, there was no, if I recall, victims' advice part of it. I'm wondering if you talked to the law society -- I believe it's the law society's program --
Mr Roche: Yes, it is.
Mr Murphy: -- on whether it has given any thought to expanding the referral service to include something like that, because I believe the obligation is to provide 30 minutes of free advice.
Mr Roche: Yes. We haven't specifically asked them about whether they're able or willing to expand it to victims. However, on their side they haven't denied the service to victims. It's available to them if they're aware of it, but they have to be aware of it on their own, and they aren't. There is no way for them to be. It is something that, as we said there, if it was included in an information package, possibly victims might be more encouraged to take advantage of that system.
Mr Murphy: You also propose some sort of independent evaluation process for agents of the crown and other departments. I assume that's everything from police to crown attorneys and others in the system. I'm wondering how you view that mechanism being set up and how that accountability would work. Have you thought it through further?
Mrs de Villiers: One thing that's occurred to me is that we in Ontario are extremely fortunate to have a couple of really big inquests. I think we're one of the few provinces that does. It really examines the system in depth. However, I'm sure that there are many cases where things need to be looked at on a smaller scale than, say, the Stephenson and the Conter and the Yeo inquests. It seems to me much the same as when there's an airplane accident they immediately send in a team, not in a way so that heads will roll, but merely to examine the system and see what went wrong.
One of the most frustrating things for me has been the lack of self-examination. It may have gone on behind closed doors, but I suggest society really needs to know about it if we are to regain our trust in the administration of justice. So I would see it as some sort of team, possibly; maybe a tragic events team -- not on a huge scale.
The Chair: Mr Jackson, I'd like to give you an opportunity to ask a question -- or two, if we have time.
Mr Jackson: Thank you, Mr Chairman.
I appreciate your focusing directly on counselling. That issue is what first compelled me to start investigating the need for a victims' bill of rights as it affects women and violent crimes and crimes against women. That was really the genesis of the document which I've presented to the Legislature three times in the last four and a half years.
Like you, I have received many telephone calls from citizens of Burlington, and the one brief story which I'll share with you is of a family -- this is multiple-incest case, and the family contacted me because they'd read in the Burlington Spectator about the first time I presented the bill.
Essentially, the daughter and the two granddaughters had been sexually assaulted, and finally they had brought the grandfather/father to court in a jurisdiction in Ontario but far from Burlington. One of the conditions was his release on bail, and the plea from the family was for him not to come to Burlington, which he immediately did upon his granting of bail.
Counselling was not made available to any of the three victims, until finally it was given to one. The mother told me -- first the husband had to call to ask questions. He said, "In 20 minutes with you on the phone, I've gotten more in 20 minutes on the phone than I've received in two years fighting this in the courts." The crown attorney hung up on the family when they requested -- and I notified then-Attorney General Ian Scott, who, to his credit, pursued it quite vigorously -- but the crown attorney hung up on the victim and wouldn't even listen to her plea not to release the family member to their community.
The one daughter attempted suicide twice. The other daughter attempted it once. The mother had to go off of counselling to put the second daughter -- it was her third attempt at suicide, and that's how they got her her counselling. There is a woeful lack of services in this area in this province, and it is predominantly affecting women, who are the primary persons needing this kind of service.
Finally, if I can just ask you to respond to the issue which your husband and you first contacted me about, which was: Why would Jonathan Yeo be allowed out on bail and not be caught at the border with a gun? I explained to you about this sort of Chinese menu that they use in our court system for bail. It's really rather offensive, in that the court only spends two or three minutes in a bail hearing going through the first two or three items, but to not use drugs or to not carry a weapon or to stay in the country, to surrender one's passport -- they are numbers 23 and 24 in this checkoff. The victims of sexual assault, of cases I've heard from, people have said that the judges and the crown attorneys and the defence attorneys, who don't allow victims' impact statements or allow the victim a standing in that situation, only get to the first two or three, which is to stay a certain distance away from person X, Y or Z. Clearly, had the crown put the effort or the attention into it, someone with a gun who used the gun to attack the first woman who was assaulted, would immediately have been incarcerated for breaching the terms of his bail.
I know the inquest spent some time in that area, and that is one that has obviously caused you much stress and concern, but could you just share with the committee briefly your concerns about the lack of standing for victims' impact statements in early bail where there's been even a conviction, or early bail on a charge has been laid for cases of violence, when threats of death and a weapon are used, and yet they are out on the street almost immediately?
Mrs de Villiers: The first thing is that I have to say that I really feel that where a victim would feel more comfortable, the victim should take the stand and should be encouraged to do so. I know all the legal arguments against this. However, we are dealing with a victim who's done extremely well because she had supportive prosecutors, supportive police and she confronted her attacker. She was brutally raped within an inch of her life and he was charged and convicted. It was extremely cathartic for everybody, and she was quite sure that the story, as she meant it to be told, came out in court.
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What is overlooked so often with victims' impact statements is that a large percentage, for example, of inmates in federal penitentiaries, particularly I think in provincial penitentiaries as well, have about a grade 5 level of education. Very often, the victims are of a similar level. They do not write well. It's extremely difficult for them to express what has happened to them. Very often this goes against them and they are reluctant.
Secondly, in the case of the young woman who was assaulted, that finally Jonathan Yeo was charged for, she was a very literate, articulate young woman, but because of terrible mishandling by the police, incredible insensitivity shown to her by the police, she took over a month to fine-tune her victim's impact statement because she didn't want one syllable to be misread, misinterpreted. Finally, it went into the docket and it was never referred to in the sentence, so that having spent a month or five weeks refining the statement and getting it done, every nuance of what had happened -- she had endured eight hours of assault by that man. He held a gun 18 inches from her head for eight hours and he assaulted her and he made her assume pornographic poses. She talked him out of killing her for eight hours and she spent five weeks writing the statement and it was not read out at the bail hearing.
You look at this and you say, "Why do I bother?" There is not an established procedure and the reason there isn't an established procedure is because the victim has no persona.
Mr Jackson: Has no rights.
Mrs de Villiers: There is no place for the victim in the courts. There are no rights delineated.
The Chair: Mr Jackson, we've allowed for some flexibility.
Mr Jackson: Thank you, Mr Chairman.
The Chair: Mr Winninger, I'd like to give you another opportunity to ask one question, given that you hadn't asked one before.
Mr Winninger: Yes, that's quite correct, Mr Chair. I was just a little concerned when Mr Jackson used the phrase "woeful lack of resources for incest victims in Ontario." I think, for the record, the people need to be reminded that there is a set of guidelines for assistance in multiple victim-perpetrator cases being developed for use in all the crown offices, and as the witnesses probably well know, there are crown attorneys in each of the crown offices across Ontario who are especially trained in dealing with child abuse cases and with sexual assault cases.
Furthermore, in the area of sexual assault and assisting victims of crime, in addition to the victim/witness assistance program, we also have the sexual assault coordinator program, the designated domestic assault coordinator program, the designated child abuse coordinator program and emergency legal advice for victims of domestic assault. These programs are quite costly, but certainly well warranted.
The Chair: Mrs de Villiers, do you want to comment on that statement?
Mrs de Villiers: I can't comment specifically on it, but I have to say that a number of these programs seem to have blown up in Hamilton. I'm not sure quite what has happened there. One minute they're there and the next minute they're gone.
I'm sure there are a lot of programs, and that's what we find: We don't know where to find them. I'm reasonably educated and I spend my day doing this. We have to simplify the system so that when we need it we can find it.
One thing about victims is that you need help at different times. Most of the assistance is handed out to you right at the time of a crime or at the time of a court case. It may be that you need help a month down the road and you have no contact person. I would just say that if you could have a really simplified access, I think that would make a world of difference.
The Chair: Thank you. Mr Murphy, one last question.
Mr Murphy: I just want to follow up on the bail hearings. I'm wondering whether your proposal is to have the victim come to the bail hearing and give evidence or just to have a read-in of a victim impact statement, I assume, by the crown at that point.
Mrs de Villiers: Yes, I've thought that -- the bail hearing certainly, as long as it is established, and it is certainly now in our region. The Yeo inquest has changed things a lot in our region. I'm not so sure about other regions. But the victim's impact statement has to be read into the --
Mr Roche: Or that they have the option.
Mrs de Villiers: Or that they have the option to go to court if they really would prefer it, understanding that people often aren't comfortable with what --
Mr Murphy: Yes, that was the reason I asked, because if you're going to have the victim testify, it is going to be subject to cross-examination at the bail hearing stage. That's where I think I would personally be more in favour of a statement as opposed to the appearance because that would at least give the victim some protection.
Mrs de Villiers: One of the suggestions we actually made to the police officers in court was that they in fact have a tape recorder and allow the victim to speak into the tape recorder if they really find it very difficult to write the statement down, and that is something else.
The Chair: Mrs de Villiers and Mr Roche, we empathize very sincerely with the suffering you have lived through and probably continue to live with and we want to thank you for coming today to make your presentation.
Mr Jackson: Mr Chairman, might I submit a copy of the Yeo inquest for members of the committee, if they would like to scan through some of the 130 recommendations made?
The Chair: Sure.
Mr Jackson: I'll supply that to the clerk then.
LONDON FAMILY COURT CLINIC
The Chair: Louise Sas and Alison Hatch Cunningham, welcome to the committee. We have a half an hour, so you may want to gauge the sense of what you want to say and how much time you want to leave to the committee members for questions. You can begin any time you're ready.
Ms Louise Sas: I'd like to begin by introducing myself and Alison Hatch. I am a clinical psychologist at the London Family Court Clinic. I have been there for approximately 15 years. Alison Hatch is a criminologist and is involved in the research in the child witness area at the family court clinic.
We've come today with a brief which I believe you now have in your hands. What I'll try to do in the next 15 minutes or so is summarize or highlight some aspects of the brief that we'd like to present to you and then entertain some questions after that.
What I should mention before I begin is that most of what we will be discussing relates to child victims of crime as opposed to adults, although I'm sure that many of the comments we will make will be applicable to adults as well.
Having said that, I'll begin by just introducing a little bit of information about our mandate at the family court clinic. The family court clinic is a children's mental health centre and is committed to advocate for the special needs of children and families who come before the courts.
In 1987, the clinic received funding under the sexual abuse initiatives program of Health and Welfare for a three-year demonstration project on issues relating to child witness court preparation; that is, preparing young children who have to testify in criminal court in respect of their own victimizations. At the time, the goal of this child witness project was to prepare child witnesses for court and to try and reduce the amount of trauma that they experience as a part of being in that process.
Since Bill C-15 came into effect in 1988, we have provided court preparation services to nearly 400 children who have come through in the London and Middlesex area. We have also tracked another 100 children who did not come through for services but were certainly dealt with in our area as well. It's with this knowledge of approximately 500 children that we come to you today with some concerns and also some recommendations on how children should be treated within the justice system to prevent further traumatization.
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A little bit of information about who it is we see: Approximately half of the children who come to us have been victimized within their family situation; that is, either someone within the nuclear family or the extended family -- a relative of theirs -- has perpetrated a crime against them.
The majority of the children we see have been sexually abused, and it's interesting, because the court system I think historically has had difficulty dealing with crime that has been perpetrated within a family system. Added to that is the difficulty that courts have in dealing with the whole crime of sexual abuse, especially that of young children.
Added to that is the fact that with the children who are coming to the courtrooms, historically I think our court systems have been very uncomfortable with receiving testimony from children. There's been a long history of concern around the credibility of children, their ability to tell what has happened to them in their lives and whether or not they are indeed even truthful or able to separate fact and fiction. Many of the cases that we deal with we feel present several challenges on different levels for the court system to deal with. As well, the majority of people we see -- the children -- are female and about 78% of the victims are indeed young girls.
As I mentioned previously, the majority of the children who are abused in an intrafamilial way are abused by someone who is related to them by blood; that is, 27%. The concern that we want to express is that it is very difficult for young children to enter a courtroom arena, not only to tell about an abusive experience that has occurred, sometimes very traumatic, but also to deal with the ambivalent feelings, the fact that they are related to that person.
The other fact is that most of the abuse occurs typically in the child's own home, which is supposed to be a place of safety and a haven, and unfortunately, if it is not occurring in their own homes, then it's occurring in the abuser's home and at times, when it's a familial relationship that's involved, it's often a home that they're supposed to feel safe in as well.
In our cases, we found that the majority of the children were expected to testify. They were the only victim in the crime. There was no corroborating evidence. There was no material evidence, no physical evidence, and so the child was essentially the pivot or crux of the case itself, the expectation of course being that they would come into the courtroom, be able to tell their story and justice would be served.
Interestingly, we've been tracking how cases have been handled in our area over the last few years and we've noted that there has been a significant increase in the number of guilty pleas in our area. In fact, it's gone from 39% to 62% and we believe strongly that the reason this has occurred is because we have a very coordinated approach in our community, and there's a very strong child witness program in our community that prepares children. I believe that counsel in our area know that. As a result, we've had many more guilty pleas than before. However, there is still a large number of children as young as age 5 on our case loads who are coming into our courtrooms and testifying and this is the thing that we want to talk to you about today.
I know as a parent of four young children myself that I would be very concerned if one of my children were sexually assaulted, or physically assaulted for that matter, and that had to testify in court, given what I've seen over the last five years.
In March 1993, the child witness project made a brief to the parliamentary committee that's reviewing Bill C-15 and Bill C-126, and I think essentially what we tried to do was conclude that overall the new amendments to Bill C-15 and Bill C-126 have really enhanced the ability of a child to enter the courtroom and tell their story.
I think the reforms have helped because they've expanded and opened the net a little bit wider by creating some new offences that better capture what happens to children. There have also been some modifications to evidentiary requirements, that now for children under the age of 14, who are unable to swear an oath in court, and where there is no corroboration, at least the doors are open and the trier of fact, being the judge, can assess the child's comments about what had happened. At least they get in the door.
However, we still feel that there are a number of areas, in particular in the reception of children's evidence and how children are treated in the courtroom, that make it a very traumatic experience in areas that we need to still work on, in particular in the area of implementation. It's my understanding that the implementation of the legislation is really under the purview of the provinces, and so it's with this in mind that we'd like to do two things. One is to mention some of the recommendations that we made to the other parliamentary committee and then add into it the recommendations today vis-à-vis the bill of rights and certain implementation of legislation to ensure that children are protected.
Overall, there were three thrusts to the recommendations we made to the legislative committee. One was to codify techniques that we know help children testify -- and I'll go into details in a moment -- to make it available routinely in all cases and to reduce the number of times that children have to tell their story in the courtroom, because there's enough literature and enough research done by ourselves and others to say that it is difficult and it's stressful and it causes damage.
The first recommendation -- and again, I'll just highlight a few -- relates to the option of testifying behind a screen or on closed-circuit TV in another room. We strongly suggested that this should be a mechanism or a provision that should be extended to all child complainants of sexual abuse, physical abuse or if they've witnessed violence, and not only to children under a certain age and in certain conditions. At the present time, the issue is that it's a very difficult procedure to obtain, in that the crown attorney must apply and prove that the child cannot give a full and candid account without the benefit of the screen or the closed-circuit TV.
We suggested strongly that expedited hearings when children are witnesses should be mandatory. We have been doing a follow-up study of about 75 children over a four-year period of time, and one of the comments that has been made most routinely by the children is it takes too long; matters take too long. We have some children as young as age 5 or 6 who have been abused perhaps a year or a year and a half prior to coming through to the project. It took a long time to disclose, and then matters can take up to a year or a year and a half in the child's life. As a result, they live in limbo. They find they can't go on and function in their school and in their home and in their community. For children, sometimes it encompasses up to a third of their lifetime, trying to get through the court process.
So we feel very strongly that expediting these hearings is something that we can do on a provincial level, and directives can be given out to crown attorneys' offices around the province that when it is a sexual assault of a young child or physical assault or any kind of matter where a child is expected to testify, that it be expedited.
We also suggested that child witnesses should at least be permitted to have neutral persons accompany them as support people to the stand. Most often, parents are subpoenaed as well, and as you know, when a person is subpoenaed, they are not permitted, unless they've given their own testimony, to be in the courtroom. I can't tell you how many young children I've seen go up on the stand without the benefit of a parent or family member in the courtroom, and it's a terrifying experience for many of them.
We suggested as well that, when children are testifying, as much as possible the courtroom should be closed. It's very hard for young children to testify in an open courtroom with a lot of people who are strangers to them. We find that many times, crown attorneys will have to work around a docket trying to get a closed and quiet room, and it's not always possible. There are many school tours that come through our courtrooms and fill up the courtrooms and listen to details of sexual assault told by young girls, and it's very hard.
The other thing we suggested strongly -- and we're glad to see that this was a recommendation in fact that was mentioned in Bill C-126, which provided amendments -- was that a defendant should always be prohibited from cross-examining a child in a sexual assault matter. We have had cases of adolescent girls where it has been an issue of incest where the father has cross-examined the child on the stand, and it has been devastating.
At the last moment, this person, on both occasions in the last two years, decided he did not want counsel, and even though the judge suggested strongly that he obtain counsel, he refused and wanted to do his own case and, as a result, he asked the questions. The questions were not difficult by any means, but it was the empowering of this individual in the eyes of the child and making this individual, in her eyes, have the same status as everybody else in the courtroom and the formality of the courtroom, that she was not able. In both situations, we lost both cases with the children not willing to go back on the stand, and we are very concerned, and we mentioned that again and again. I'm glad to see that's something that's come through.
One of the issues for us has been that Bill C-15 had a lot of good recommendations and we saw it as being fairly progressive in terms of, as I mentioned before, the reception of children's evidence and also trying to protect children just a little bit in this very difficult arena. But the problem has been implementation. I'll give you some examples so that you could see what we're facing.
The screen and the closed-circuit TV provision have been used very minimally across Ontario. In fact it has been used minimally across Canada, but in particular in this area. One of the reasons, I believe, is because, for example, with the closed-circuit TV provision, where a child would be allowed to testify in another room and have it videotaped into the main courtroom, the cost is prohibitive.
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First of all, to my knowledge, there are only one or two sets of equipment that exist in Ottawa. We just recently were able to obtain the equipment at a great cost of $3,000 and have it brought down in advance to a courtroom in St Thomas in order for a young five-year-old child to testify about abuse by her babysitter.
The cost of the equipment is well over $50,000. It took two trucks to bring the equipment, and it took the crown attorney and an assistant 12 hours to set it up. He also had to set it up in the judge's chambers, because there was no place to set it up. The time involved, the effort, are prohibitive. The majority of crown attorneys will not access that equipment at all.
I really believe strongly that there are many children out there -- and that's certainly my experience as a clinician -- who would give reliable and good testimony and be good child witnesses in court in respect of their victimization if they had that as an option, and it's just not there. So it seems to not matter that it's a right within the legislation; it doesn't occur. The majority of the crowns who you will speak to or who I speak to will say, "Well, it would be nice, but we're not going to get it if there's no use trying for it."
With respect to the screen, it's an option that is certainly less costly, but it's also not a very good option, and many of the children feel uncomfortable given that they don't like to be seen and not be able to see. We found that on a number of cases where we were able to secure these screens for younger children, it worked really well, giving them a sense of protection, but for the older ones, I think they had issue with it. The very best technology, we feel, at this point in time, given our own research and contact with, in particular, Australia that's doing a lot of work in this area, is that the closed-circuit TV provision should be available to children who want it when they have to testify in court.
The other thing that we would like to talk about is something we feel can be provided on a provincial level, and that is a courtroom dedicated for children. In Toronto I understand that there is a courtroom that's specifically designed for young children who have to testify in sexual abuse matters. The crown attorneys are trained in sexual abuse and in child abuse in general. The room is set up in a way that children can feel safe and comfortable and give their testimony.
We feel that as much as possible, where the numbers warrant it, courtrooms should be set up across the country so that the closed-circuit TV equipment and everything else could be set up in there and that different communities could access those courtrooms for the benefit of young children. We know from our research and we know from the research that we've read, when the child is not afraid and the child feels safe, the testimony is clearer, more concise and more complete. I feel very strongly that this assists in the administration of justice and certainly does not in any way hinder the accused's rights.
In the area of training for criminal justice personnel, I think we've been discouraged many times. I think there still is a fairly consistent bias on the part of judges, and I'll talk about that in a moment in a little bit more detail. There's certainly a gender bias that we've seen in terms of obtaining convictions for young females who have been sexually assaulted as opposed to young males. Also, there's a real lack of understanding on the part of the judiciary in general for issues related to child sexual abuse, child abuse in general, child development, issues around recantation and disclosure and those matters that pertain to sexual abuse.
Many judges, when they're determining whether or not a child is able to give competent testimony, don't know what questions to ask. Many of the questions are well beyond the scope of young children. They do not comprehend what's being asked of them and, as a result, they don't perform well. We also find that very often there are crown attorneys who don't know how to interview young children, who don't know a lot about sexual abuse per se, as a syndrome and, as a result, the cases are not well handled. They're not as well handled as they could be.
For that matter, there are also police out there who, when they're doing the investigative interviews, do not have the sensitivity that's needed and do not have the understanding of child development, and so the way they question the children and the way they do the statement-taking is not in keeping with the child's level. Very often we find that there are gaps in the information that children provide.
One of the findings from our three-year demonstration study was that preparation for young children who are going to be testifying in court makes a difference. It makes a difference because it educates them about what they're going to do in court, it helps reduce their stress and it helps them tell their story better. At no time at all in any of the preparation do we access the actual event that occurred, so it's simply just a matter of preparing children to testify in an arena which is really very adult oriented.
Another recommendation that came out of the initial work that we did was that after court a lot of work needs to be done, and I think in terms of the victims and victims' families, very often they don't know how to access the information. They don't know where it is they have to go.
We are concerned about victims' safety, and I understand that was one of the issues that's being discussed today in terms of bail. We have many cases of young children who accidentally come across their offenders, who all of a sudden are no longer in jail and are back in their communities. No one has told their families and no one has told them that these persons are out, and they fear for their safety.
We feel very strongly that they need to have more information made available to them about what happens to somebody when they are convicted and sent to jail, for how long can they be expected to be there, and certainly there must be someone with the responsibility to let them know when these people come out, because in some situations, unlike other kinds of crimes, there are one or two individuals in the community who are very much at risk from this person coming out, and we feel that at the very least they should be notified about it.
We don't have a lot of experience with the criminal injuries compensation, which I realize was another area, but we've had about a quarter of our children who have made applications and have been successful. For the most part, they've been very pleased about the amounts of moneys that have come through. Most of the time that money is put towards treatment, although it's very hard; the waiting lists are long and it's hard to find someone to treat them. But certainly the money has come in handy in that regard. The only negative that was expressed in our follow-up study of the young children was that it took so long again. There seems to be a lot of bureaucracy in bringing the whole matter to closure.
The other thing that I wanted to mention is that in our study, about 40% of the kids and families had never heard of the Criminal Injuries Compensation Board, and when talking to them at the follow-up stage we were able to describe the service and ask them if they accessed it. They said they would have, had they known about it, and I think I heard a little bit of that theme in the last presentation. There may well be services out there, but helping people to access them is difficult because you see them at a time when they're in crisis, and a lot of what they hear I don't think they really hear or, if they do, they forget. They need to be reminded and have pamphlets or whatever that could do that for them.
In terms of the victims' bill of rights, in theory I certainly would have no problem with it. I think it's very important that we start to somehow look at a better balance and guaranteeing some rights for victims. I would suggest, however, given some of the experiences in the United States -- and I think Alison could address more questions in that area, if you have them later -- unless there's some teeth to the bill and unless it's perhaps put into our Canadian charter, it won't really translate into anything very different than what we already have.
But if we're going to move in that direction and we're going to outline rights, then I think we need this section that deals with children's rights. Child victims have specific needs that need to be addressed within the courtroom; not that they're any less competent, but I think they are more frail and there's a greater risk of traumatization for children when they're brought in. I think I will end there, and we could entertain questions.
Mr Winninger: I'd like to thank you both for travelling from London today to share your wisdom with us.
I just have one question that's based on a section at page 20, victims' bill of rights, where you state that you "are not of the view that a bill of rights for victims would provide anything more than superficial or cosmetic benefit. In fact, it might raise expectations for rights and services that will not actually be provided." I wonder if you might expand on that.
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Ms Alison Hatch Cunningham: Based upon the experience in the United States, where over 40 US states have got a victims' bill of rights, there's never been any large-scale research study that has been able to find any documented benefit of victims' bills of rights. Typically, what happens is that legislators fall short of mandating the rights, so they're not rights so much as the rights that are entrenched within the charter to which offenders have access: the right to counsel and the right to remain silent; it's just really a list of things that we'd like to be able to offer victims.
Therefore the victims who have been denied these so-called rights have had no actual recourse. So when they have been treated unfairly or when they haven't been involved in decisions or whatever, they've never been able to say: "How can I get that rectified? I'd like that acquittal overturned because my rights were denied and I didn't have access to that."
Without some reflection of true rights, such as were entrenched in the Canadian Charter of Rights and Freedoms for offenders, victims don't have recourse and they don't have any means of demanding that these programs actually be provided by the government. So they tend to be fairly hollow promises. I would have concerns that without a commitment of resources to the end of providing these programs for victims, it would be nothing more than a piece of paper that says some very nice things.
Mr Jim Wiseman (Durham West): I'm intrigued with the cost of the setup of the cameras and all of this for the giving of testimony in a protected environment. Can you give us a description first of what they actually set up, how they did it, how many cameras they used and so on?
Ms Sas: Yes. You have to realize that because it can be moved from one courtroom to another and has to be set up in each, it probably involves much more equipment than would be necessary if it was remaining in one courtroom.
First of all, in the courtroom itself, the judge has a microphone available to him and also earphones. He has a TV screen on his desk. There is also a large screen so that everybody in the courtroom remaining can also see the child, who's in another room testifying. In cases where there is a jury and a judge, the jury would also have a screen that they could view. In another room, in between the two rooms, there's this very large -- I don't know what it is -- where the technician is, but it involves a small TV screen and the person who is monitoring the sounds from both rooms and ensuring that everybody can hear everybody else.
Because the accused remains in the courtroom -- the accused has to be able to communicate with his or her counsel in the other room -- they also have earphones and they are hooked up as well.
In the room where the child is, usually the defence lawyer and the crown attorney and sometimes a support person like myself will be allowed to sit in, as well as the child. The way they've set it up is the defence lawyer and the crown attorney will be sitting next to each other and the child on the other end. There are cameras and TV screens on both ends so that the child can see into the courtroom when the judge is asking her a question. I think it's voice-activated, so depending on who is asking the question, the camera will screen the room and focus on that person.
For example, this young child was asked a question by the judge and she saw the judge on the screen at that time. When the defence lawyer was asking the questions, he was the one who was appearing on the screen as well as the child. The concern is that the judge and those in the courtroom can always see the child's reactions as she is speaking or when she's being asked questions.
All I know is that the amount of equipment in terms of its size and weight took up the entire middle of this room. We had received 10 of the 12 boxes of equipment and it looked like a heavy metal band. It was unbelievable. It was also very difficult to set up. You can request that a technician come with the equipment. The problem is, there may be many cases on at the same time across Ontario that need the equipment. You need to ask in advance for it, and to tell you the truth, the majority of crown departments don't even know it's there and that they can ask for it. Often you don't know you're going to need it till closer to the date. It's really impossible the way it is now. I don't see how it can work.
Mr Wiseman: Sure. In terms of confidentiality of the witnesses and all that, is that what has been prescribed by law, that it must necessarily take place, or is there something more minimal that could happen that would serve the same purpose?
Ms Sas: The law doesn't have any directions in it per se as to how much equipment or how it should be carried out. I think the intent of the legislation, when it is used, is that the child can be in another room, because one of the issues that we know is most difficult for young children is facing the accused person. Across the board, that's the thing children fear the most. It doesn't really seem to matter if they've been very severely abused or not as severely; children just are very afraid. So putting them in another room means you need the equipment in order to have everybody here and listen.
You're probably right: It probably could be done for a little bit less, but it certainly would cost a lot less if there were some stationary programs and dedicated courtrooms where this equipment was just routine and it was hooked up. I think in that way it would be less expensive.
Mr Murphy: If I could just follow up on a few of those questions, do you know how many courtrooms or jurisdictions within Ontario have those facilities now?
Ms Sas: One, and it's in Ottawa. I understand the kids' court here in Toronto is set up as well. They must have gotten their equipment privately, which is what we will try to do as well.
Mr Murphy: Okay. The other thing is, I was wondering: Your clinic essentially deals with child victim witnesses after charges are laid.
Ms Sas: Actually, the clinic itself has a much broader mandate. The family court clinic's larger mandate is to provide young offender assessments before the court. We also do child welfare assessments when children's aid is involved with parents over rights of young children and custody and access assessments. We also deal in the area of wife battering and women abuse.
Then we have a child witness project, with myself and Alison and several others, that only deals with young children where charges have been laid. But more and more, we're becoming involved in doing assessments of young children where there are suspicions of abuse having occurred and trying to ascertain whether or not the children's aid should become involved. There are concerns there. So our mandate is also broadening.
We also provide victim impact statements and I do a lot of expert testimony in court.
Mr Murphy: We heard from an earlier witness about the problem of victims not having access to adequate services if a charge isn't laid or prior to the laying of charges, the police contact and counselling almost right away. I'm wondering if you could describe a little bit for me and the committee what happens at that point.
Ms Hatch Cunningham: Actually, that is the substance of one of our recommendations. I will have to flip through and find which and where it's located, but one of my observations has always been that to house the victims' services only at the courthouse serves to deny a wide number -- a huge proportion -- of victims' access to services. What we've always said is that what victims really need is information and support and really simple stuff that doesn't cost a lot; just a bit of sensitivity to their issues. But when you focus solely on victims who go to court, you've missed all the victims who didn't report the crime and you've missed all the victims for whom the offence was not cleared by charge.
We would, as one of the recommendations, advocate that victims' services should be located in police departments, because police are the front-line agencies. They see the widest proportion of victims of any actors in the criminal justice system and they deal with victims on a crisis intervention basis oftentimes. In British Columbia, the province I'm from, I believe that is the model: that victims' services are housed in the police departments.
Mr Murphy: One last question, the Chair advises me. It's more, actually, a comment on your training for criminal justice personnel. I think you have a suggestion here for an interpreter to be used for children. I actually think I disagree with that for two reasons. One is, I think it probably ends up being too costly.
Let me just make the side comment, though, that the concern about intelligibility of questions asked by lawyers and judges in courts is not limited to children. Having experience, courtroom lawyers all the time ask questions that no one can understand, never mind just children, so I think it's a broader issue than that.
But I think your recommendation in fact makes sense to me in that you end up with a recommendation that what you need to do is have training as part of what goes on for sensitivity in all aspects of the criminal justice system. I think that makes sense and I'm wondering how you view that working as an annual thing or how you would see it working in practice.
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Ms Sas: Just two comments. I agree with you that having an interpreter would be very costly. I think it's in desperation that we were pointing that out. I'll give you just one quick example to highlight it. Just recently, I had a young boy who was testifying in court about a physical assault, and the crown attorney was actually asking questions, and there were numerous instances of physical assault on the part of a foster mother that he was alleging. The crown attorney stood up and said, "Well, what" -- the boy kept forgetting to say something. There was a large piece of his testimony that he was not alluding to that was crucial to the matter that I knew but he was just sitting there, and she kept saying: "Well, what other injuries? Were there other injuries?" and she got nothing. I finally touched her on the back and I said, "Can I write you a note?" and she said yes and I said, "Ask him if he was hurt anywhere else," and then the entire -- "Yes, of course I was hurt somewhere else." It was that simple.
I can't tell you how many times I have sat in the courtroom and have brought young children in where it's not just the defence lawyers, the crown attorney as well, or the judge, in asking a question. "What is your moral obligation to this community here today of a 10-year-old child about telling the truth?" That's sort of what I was suggesting.
So in response to your question about training, we're becoming more involved on a local basis with the crowns and with the police, certainly; less so with the judges. That's sort of the last horizon. I know this summer that I'll be doing some training at a conference for judges in Quebec. I don't know that yearly is enough. I know it should be compulsory that if you're going to deal with young children, especially in these very sensitive matters, that has to be a part of your training and you have to continually review it, like we do.
Mr Murphy: I would assume that a dedicated courtroom with dedicated officials would be in fact be able to --
Ms Sas: "Dedicated" is a global term. "Dedicated" means "trained." If you do the training, you're dedicated, yes.
Mr Jackson: Louise, Alison, thank you for your brief, especially with the so-clearly-set-out recommendations. I wanted to dwell on the concept of "offence not cleared by charge." Are you keeping stats on this? Because I'm currently working with a couple of cases in Halton that are deeply disturbing to the families involved, and they're frustrated. They don't know what to do. It's all come down as you've seen it thousands of times, probably, where it's the child's word against the adult's. Are you keeping stats on this? I've checked with our crowns and they're really not keeping stats on this and this frightens me, the number of kids who --
Ms Sas: Certainly in our jurisdiction the crowns would not be the ones who would have the stats; it would be the police.
We did a study over a two-year period of time where we looked at the two years just prior to implementation of Bill C-15. I'm trying to get a sense, because we felt strongly that the police, and particularly with young children, do not lay charges. Their concern is mainly around frailties of young witnesses and the lack of corroboration and so forth.
At that point in time, it was about a third, a third and a third. So a third were cleared by charge -- that is, a charge was laid; a third were cleared otherwise, which I'm not exactly sure what "otherwise" was; and a third were not cleared by charge, which I found really very high. I think the funnel system is really at work here, where you have numerous unreported incidents of all kinds of crimes, particularly, let's say -- I'll discuss children mainly, and then you have a certain number that do come through but the police probably respond to about a third of them; maybe a little bit higher.
We have seen an increase in the response rate of the police to children in our community. I think it's because we're watchdogs and we're there, and also because they're educated in dealing with young children and they get better statements now. So they feel they have something to go to court with. I think it's getting a little better in our own jurisdiction but I don't know what it is across the province. I think it would probably be quite variable in some communities where a lot of them are not cleared by charge and there's no recourse; there's nowhere to go. A lot of what I do in the area of custody and access and child welfare is just the cases you described, when it's an intrafamilial situation, that is, within the family, where there are allegations of abuse, where the police feel they just don't have enough -- a three-and-a-half-year-old child, whatever, and then where does it go? Those are very frustrating.
Mr Jackson: You mentioned access issues. We've been assisting with supervised access. I know I'm off topic slightly, but I'm on topic when these are victims in matrimonial disputes where there is implied or established violence. I understand your supervised access program may be terminated in London.
Ms Sas: In our area, yes.
Mr Jackson: Ours never was started, but we started one and we've lost that location. So just as a community effort, we're trying to pull that together.
You were here earlier when I raised the issue with Mrs de Villiers about the case of the multiple family incest. In that case, after considerable time spent on it, the family started to relate how they'd been treated. These young girls were first introduced to a police officer. They felt once the mother dealt with it, then she could deal with the daughters being sexually assaulted. The police officer visited them in uniform. They were seven and nine, I think, at the time, the daughters.
He never informed them that they had a victims' impact statement. He just said, "What happened?" and gave them a sheet of paper. After three or four minutes, they wrote a few things. He took that and that was the basis on which he did the investigation. It was a person who'd been sexually assaulted outside of the family who actually brought the police in, but that was the first introduction.
On the strength of that statement, without informing the girls, the young children -- they were children of seven and nine -- that was the basis on which there were no charges laid because their statements were so lacking. But they were never informed. Are you seeing more and more of that or less and less of that?
Ms Sas: We're seeing less and less of that. I think we're really fortunate. We have, maybe because it's a smaller community, a really coordinated effort. We meet monthly and we have representatives of the crown attorneys, the police, the children's aid, ourselves, the victim, witness people. We have a very good victim witness assistance program.
Actually, I just reminded myself that, you know, I understand there may be 11 or 12 of them across the province. You need them everywhere. They provide at the courthouse the kind of support that most of us as professionals don't have the time to give. We can't give the kind of hours to sit there for a whole day with people going through the court system, but for a very, I think, limited cost, they provide wonderful services.
I think we're seeing in our community less and less of what you described, sort of the horrors of poorly done investigations and poor response by the system. But then again, I still have cases that come through where I'm sorry for the children, I'm sorry for the families that they ever took that recourse. They're being doubly traumatized in that setting and, to some extent, even harassed. It's not worth it, because I think we can all agree that why we're setting this all up, why are we prosecuting these kinds of cases is to protect them, and they're not protected in that arena.
The Chair: One last question perhaps.
Mr Jackson: Very quickly, then, one for Alison. I respect very much what you have to say about the victims' rights in and of themselves. Those of us with any legal training understand that, but the experience -- and I've studied them in other jurisdictions both in North America and across Canada.
Where there has been, at least in the Canadian experience, because the Americans have unique problems themselves, I think -- but the Canadian experience, once the provincial government makes the commitment in this area -- we've seen an acceleration on several fronts of reforms and the sort of more enlightened approach you referred to in BC case where the placement of services was well thought out and appropriate and so on.
I know in Manitoba native access to justice is vastly improved as a slingshot out of their victims' bill of rights, the first in Canada. Would you not suggest that in the shadow of a victims' bill of rights speaks at length about a commitment and does, in and of itself, begin the process of greater reform as opposed to less reforms?
Ms Hatch Cunningham: Absolutely, as a catalyst to some better service provision, then it would be very helpful. It is, as you say, a statement that a government is concerned about these issues and committed to examining them. I would just be concerned that governments, not necessarily this one, sometimes take the glitzy approach. "Let's pass a stalking law because that's kind of an interesting thing and let's get some PR because we have an election coming up." But the issue of course is enforcement of those provisions and training of people to do that. I'm just concerned that it could be misused as the appearance of reform rather than any actual substantive reform.
Just in conclusion, I'd say that we've got sort of the best of worlds and the worst of worlds, because in some areas we have wonderful victim services and in others they don't exist.
Mr Gary Malkowski (York East): What I'm wondering is if you have any kind of special process, or what happens to disabled people or people who have trouble communicating? Do you have any kind of experience in dealing with that? If you do, how could you expand the services, and what would you see worthwhile in that when it comes to interpretative services and that kind of thing?
Ms Sas: Yes, we do. We actually have a person on staff who signs and has done core preparation through signing. We've had a number of young children who have come through with very special needs and we've actually tried to work with the core system to provide for their needs. They have trouble providing for children, let alone children with special needs, but we have had many children come through. In fact, about 10% of the children who have come through have had some special need that we've had to address.
We've had four or five children who have come through who have had difficulty hearing and have had to have someone sign in the courtroom, where we've made sure that the interpreters were there and assisted in the actual court process, both at preliminary hearing and at trial.
My understanding is that in Bill 126 there is a provision to address the special needs of some of the child victims who are coming through and that these provisions will be made standard and available; for example, the screen and the closed-circuit TV as well. I guess that would be my response. There have not been very many children.
I do know of several studies, however, and we've been concerned that many of the children are more at risk for sexual abuse and for physical abuse. In fact there was a very good paper done out in BC in respect of that matter. We've tried very hard to understand those issues and to be wary of them.
There was one case most recently at the Robarts School that we were involved with and provided consultation to the staff there around abuse allegations that were occurring in that school and with those children. How were we going to prepare and provide services for those children? Yes, we have been making an attempt in that area as well.
The Chair: Thank you very much for your presentation. It was very informative.
Two things for tomorrow's committee meeting: We have a full agenda, so I would urge the members to come on time so we can start at 3:30. Secondly, Andrew McNaught has done some research based on a question that was asked by one of the members. If there are comments, we can deal with that at the next meeting, particularly if we start on time. The meeting's adjourned.
The committee adjourned at 1712.