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C-32 - Victims Bill of Rights Bill - Bill to Amend—Third Reading—Debate Adjourned

 

Hon. Serge Joyal: I would like to join the debate at this stage because this bill is a very important bill for its social purpose. It brings into the legal heritage of Canada a new concept of public responsibility. When I started reading the bill, and especially its title, which says it is a Canadian victims bill of rights —

In French, it's the Charte canadienne des droits des victimes.

— I found there was an insistence put on the concept of a charter. The sponsor of the bill, Senator Boisvenu, opposed in one way the Canadian Charter of Rights in relation to the offender with the conditions of the victim, concluding easily that the Canadian Charter of Rights is tilted in favour of the offender against the proper recognition of the status of the victims. This is a conceptual kind of perception of what the legal system is in Canada.

I read the bill attentively. I participated in the hearings of the committee and heard all the witnesses and the experts, and the minister, of course, and the representative of the Department of Justice; and I came to the conclusion that the bill fails on three major counts.

The first one is that the bill is conceptually defective for the purpose that it's supposed to serve, and I will illustrate that.

The second conclusion that I draw from that study of the bill is that the bill fails to provide victims with a real legal remedy if their rights are not recognized. I insist that the bill fails to recognize a real legal remedy for the rights that are recognized for the victims.

Third, in my opinion, the bill dilutes the protection afforded to the Aboriginal offender. This is a very serious issue because it addresses a decision of the Supreme Court of Canada from 1999 called the Gladue principle, which is the special condition of Aboriginal offenders in the Canadian legal court system. I will expand quickly on that third point.

But let me first address what I feel has been one of the key weaknesses of the bill, which is the fact that the bill is conceptually defective. What do I mean by that, conceptually defective? The bill's purpose, as Senator Boisvenu mentioned, is in its title. It is a Canadian charter of rights of victims. What is a Canadian charter of rights?

Any Canadian on the street will tell you that the Canadian Charter is a legal document that guarantees your rights. I insist on the words "guarantees your rights." If I read section 1 of the Canadian Charter of Rights and Freedoms:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it . . .

In French:

La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés.

If it is guaranteed, it means that the rights are real. If they are real, what happens when your right is violated or is not respected? Any one of you will know the answer. You go to court. That's section 24 of the Canadian Charter of Rights and Freedoms, and I'll read section 24:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

So what is it? You have a right that is guaranteed, and you have, of course, the underlying right to go to court, to seek the remedy, to get an order from the court to repair the damage that you have incurred by not having your right recognized or adhered to by the authority to which you address yourself.

This is the essential principle of a charter, and that's why, when I read the title of this bill, the Canadian victims bill of rights, my first preoccupation was to go to the bill and find out what rights were recognized. The rights were the rights to information, section 6; the rights to protection, section 9; the right to participation, section 14; and the right to restitution, section 16. In other words, there are four rights in the charter, the alleged charter — four rights.

Then I went a step further and said how is the right protected if someone feels aggrieved if his or her right to participation is not recognized? Unfortunately, honourable senators, I went to sections 28 and 29 of the bill, and section 28 states the following:

No cause of action or right to damages arises from an infringement or denial of a right under this Act.

Do you want me to repeat that?

No cause of action or right to damages arises from an infringement or denial of a right under this Act.

In other words, no section 24 of the Canadian Charter of Rights and Freedoms. No right to go to court. When you go to court, you go through an independent process. That is very important. If you feel that you've been aggrieved, you are entitled to an independent hearing, somebody who is outside the litigation and will adjudicate on the basis of a certain number of principles of natural justice. We all know that. It is the legal system in Canada.

Then section 29 of the so-called victims bill of rights states:

No appeal lies from any decision or order solely on the grounds that a right under this Act has been infringed or denied.

Not only do you not have a right to be heard, but you don't have a right to appeal. You can't go to the Supreme Court. You can't go to the Court of Appeal. You can't go to the court of common law in review of an administrative decision, which is the normal legal system.

But the charter provides for a mechanism of complaint. Senator Cools, you know what that is. It's an administrative mechanism. It's not a legal mechanism. Unfortunately, the proposed bill of rights at section 25(2) doesn't provide for any kind of order or capacity to ask for production of documents or to order a remedy or to appeal to a court.

In other words, honourable senators, this bill, as much as I subscribe to the objective of it, I do so on the basis of philosophical values. Why? Because I think that in Canadian society, in 2015, we are in a position to collectively share the responsibility to recognize the locus standi of any victim in legal proceedings. If we are to recognize that, we have to put our money where our mouths are; that is, we have to recognize the aid system. We have to recognize the compensation system, as much as some 50 or 60 years ago we recognized the right to health in Canada. We established a health care system, and the government decided to take upon itself to pay for that system anywhere in Canada. Any Canadian has the same right to health care wherever they are in Canada, whatever is the care they need in order to come back to health. This is a national system.

My contention is that if we are to recognize that victims have rights, they have the same rights and are entitled to the same compensation, to the same aid support, to the same protection of the court if their rights are not respected in the same way as if my right to have access to health care is not respected.

The Supreme Court of Canada in the Chaoulli decision a couple of years ago decided that because the Canadian government and the provincial governments have taken on the sole responsibility of providing health care, if the public system fails to provide you with care, you have the right to go to the private sector. The government cannot prevent you from being entitled to be cared for and to receive the proper health care you deserve, and that is because you are a Canadian citizen. To me, this is a logical, comprehensive system.

Unfortunately, in this bill we don't have the comprehensive system with the right protection afforded to the victims. Hence, the perception generally is that it is certainly a step forward. Nobody will deny that. But we really stay at the doorstep of any real system of protection of victims' rights.

For instance, in the health care system, the federal government doesn't have hospitals, but we spend a lot of money as a government to provide support to the provinces if they satisfy the four objectives of the national health act. You know them; we discussed them at length in this chamber some years ago.

In this bill, there's no such responsibility shared by Canadian society in relation to victims. So it seems to me that if we are to make real progress, we wouldn't agitate a charter by not delivering on the financial support and compensation system that has to exist in Canada from coast to coast to coast. That won't happen overnight — I'm the first one to understand and recognize that — but at least the objective will be in the act as much as it is in the health care act. At least there would be a remedy for any victim who is convinced that one of his four rights have not been recognized or protected in the legal system.

So it seems to me that it is very important that we clearly understand where we are at with this bill. As much as I support the objective, as much as I feel we remain well behind where we should be going in support of victims, if we are to agitate the notion that criminals are protected by the Canadian Charter of Rights and victims are protected by the Canadian victims bill of rights, if we do that, if we trump the perception that victims will finally have a document to protect them, unfortunately, honourable senators, we face a lot of deception and criticism in the future.

That's why I want to introduce an amendment to this bill. I want to introduce an amendment to this bill to give it the real meaning it should have as a charter.

Motion in Amendment

The Hon. Serge Joyal: Therefore, honourable senators, if it should have meaning as a charter, I move:

That Bill C-32 be not now read a third time, but that it be amended

(a) in clause 2, on page 8,

(i) by adding after line 7 the following:

"(2.1) The authority referred in subsection (2) must have power

(a) to compel the federal department, agency or body to produce information and documents relevant to a complainant; and

(b) to make recommendations and orders to remedy specific or systemic infringements or denial of rights under this Act.", and

(ii) by deleting lines 31 to 36; and

(b) in clause 24,

(i) on page 22, by deleting lines 38 and 39,

(ii) on page 23, by deleting lines 1 to 7.

I do this, honourable senators, because if we are to raise the prospect of better protection — and I support that wholeheartedly, as I'm sure most senators do — I think we have to be very clear on what we need to achieve to attain that objective. It is important because in doing so, we should not at the same time diminish the protection afforded to Aboriginal offenders. Unfortunately, at section 24, what the bill proposes to do is dilute the protection that the Supreme Court recognized in 1999 in the Gladue case, which is now called the Gladue principle, which is included in section 718.2(e) of the Criminal Code. The Gladue principle is a very simple principle; it has been explained at length by the Supreme Court of Canada in its decision, especially at paragraph 93. I will quickly read an excerpt from this principle:

Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing.

The reason why the court has recognized that, and I read the explanation of the court in relation to that principle:

The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known. Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. These and other factors contribute to a higher incidence of crime and incarceration. . . . these various factors produce an overincarceration of aboriginal offenders . . . . "When the social, political and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail."

Unfortunately, section 24 of the bill dilutes the protection recognized in the Gladue principle enshrined in the Criminal Code. Honourable senators, I don't think that you protect —

I'm sorry. Your Honour, could you call the house to order? I'm finishing my speech. I'm disturbed by this conversation on the other side.

The Hon. the Acting Speaker: Please, honourable senators, only one person has the floor and that's Senator Joyal. I would ask the other senators to take their seat and to stop talking immediately.

Senator Joyal, you have the floor.

Senator Joyal: I'm sorry, honourable senators, but you understand that I don't read speeches by somebody else. I speak from my mind on the basis of the study of the bill that we have in front of us, on the basis of the testimony that we hear, and I try to explain to the chamber what I strongly believe. Being disturbed by senators who speak loudly — I don't prevent other senators from speaking at a low voice. I'm not inhumane on that. But when it's too loud, I'm sorry, I'm disturbed in my presentation, and I have a right to be heard by this chamber. Thank you, honourable senators.

What I was concluding, honourable senators, is that if you want to protect the victims' rights, which is, as I said, one of the most humane policy objectives — and I think that Canada is ripe for that — I don't think you need to do that at the expense of the Aboriginal offenders, who are in the plight that the Supreme Court described they are in, in 1999, in the Gladue case. I think you can serve both objectives equally, fairly and with the corrective system we have to address the overrepresentation of Aboriginal people in the incarceration system in Canada.

Honourable senators, with those arguments, I strongly invite you to reflect upon those amendments because I think that they are essential to give to the bill the impact that it should have. I'm not the only one asking for that, honourable senators. The victims' ombudsman, when she testified at the committee last March, recommended — and it was quite clear in her presentation — that her power as ombudsman be strengthened and that real remedy be afforded to the victims. Another association that we didn't hear from, L'Association québécoise Plaidoyer-Victimes, through the chair of that association, Arlène Gaudreault, sent us a brief supporting the ombudsman's recommendation in relation to the victims' rights and their capacity to get a remedy.

With all that being considered, honourable senators, I strongly invite you to support those amendments.

Some Hon. Senators: Hear, hear.

The Hon. the Acting Speaker: Honourable senators, it is moved by the Honourable Senator Joyal that Bill C-32 be not now read a third time, but that it be amended —

Hon. Senators: Dispense.

(On motion of Senator Fraser, debate adjourned.)