Introduction

“I learned that the Criminal Justice System actually meant justice for the criminal ‒

the victim was a virtual non-entity or an annoyance.”[1]

‒ Survivor of attempted murder

The mandate of the Office of the Federal Ombudsperson for Victims of Crime (OFOVC) includes:

·         promoting access to programs and services for victims

·         addressing complaints

·         building awareness of victims’ concerns

·         identifying emerging and systemic issues

·         offering information and referrals to victims of crime

We hear firsthand from victims and survivors that the criminal justice system is often re-traumatizing. Victims of crime are fighting to be heard by a system that exists because they were harmed. We ask:

·         What does justice look like?

·         If you experienced victimization, how would you want to be treated?

·         What ethical obligations do we have towards victims of crime?

On December 4, 2022, the Standing Committee on Justice and Human Rights (JUST) Committee released its report, Improving Support for Victims of Crime. Over a period of nine months, the JUST Committee held 10 meetings and heard from 32 witnesses. They considered input from victims of crime, academics, and victim service providers, as well as recommendations made by our office in our Progress Report on the Canadian Victims Bill of Rights (2020).

This is our formal response to the JUST Committee’s report. It is informed by complaints we have received from victims of crime across Canada, conversations with stakeholders and advocates, and consultations with our Academic Advisory Circle and Frontline Service Provider Advisory Circle. We understand that the word “victim” is value-laden and may be problematic for many people who have experienced violence or whose loved ones’ lives were taken. We use the term here in the context of victim rights in the criminal justice system.

Many of our recommendations and those proposed by the JUST Committee do not require fundamental changes to the system itself but rather a broadening of perspective; one that includes the victim’s lens throughout the criminal justice process. Our work is founded upon the objectives of the Canadian Victims Bill of Rights (CVBR), quasi-constitutional legislation enacted in 2015. The CVBR guarantees victims rights to information, protection, participation, to seek restitution, and to file a complaint.

Our great hope is that Parliament will listen and act. This is an opportunity to lead with compassion.

 

Right to information:

Information about an offender serving a federal sentence

Accused individuals have Charter protected rights to legal counsel and are automatically provided information regarding their rights. However, victims are not provided with the same protections and they are not automatically informed of their rights. Many victims tell us that they learned about their rights and services from other victims or after time-consuming research. Victims’ rights and the rights of people accused or convicted of crime are equally important.[2]

In our Progress Report on the Canadian Victims Bill of Rights (2020), we referred to information as a “gateway right” because when victims of crime are not offered information, it is difficult to access their other rights. According to the CVBR, the Government has an obligation to ensure that every victim has access to these rights. The CVBR is a quasi-constitutional law. Quasi-constitutional laws are considered by the courts to be of fundamental importance and fundamental value in our society and if a conflict arises, it should take precedence over other regular laws, like the Criminal Code of Canada and the Corrections and Conditional Release Act (CCRA).[3] Given the trauma that many victims experience, they may not have the capacity to advocate for themselves or to proactively search for information. Information should be provided to victims with a trauma-informed approach. Following traumatic experiences, a person may not have the same capacity as before to process complicated information. Most victims are not familiar with the criminal justice system and may need their rights explained to them multiple times with clear language.

When a person is sentenced to federal custody, the CSC and the PBC have programs to support victims of crime. One of the most helpful tools is their Victims Portal, a secure website where victims can receive information about the offender, possible release dates, federal victim services and instructions on how to share safety concerns. Victims can request to attend a parole hearing or listen to an audio recording of a parole hearing as well as submit victim statements and request copies of decisions.

A major concern arises when victims are not informed of the existence of programs and services. In order to access the Victims Portal, victims of crime must know about its existence and then proactively register.[4] Bill S-12 has provided an important legislated mechanism to inform victims about their rights. At sentencing and on the Criminal Code form for a Victim Impact Statement, victims will be asked if they would like to receive information about the offender’s sentence and its administration. This is a significant step forward and responds partially to the JUST Committee recommendation to offer information proactively.

Even so, this language will need to be explained to victims so they can make an informed decision. If they do not register with the CSC or PBC, they will not be offered information about:

·         the custody facility where the offender is located

·         prison transfers

·         serious disciplinary offences

·         treatment programs in custody

·         temporary escorted or unescorted absences

·         parole hearings

·         release dates

And they will not receive information on how to:

·         submit a victim statement for corrections and parole

·         request geographical restrictions

·         share safety concerns

·         participate in parole hearings

·         receive compensation to attend a parole hearing

·         access restorative justice programs

·         provide feedback on the criminal justice system

·         file a complaint

If CSC or PBC detects a serious threat to the safety of a victim through information disclosed by an offender, they will assess the risk and may inform local police. Still, a victim may detect or know information that is not apparent to others. The parole hearing can help a victim assess their personal safety and make decisions about future interactions with the offender, especially if they are related.

Even though the CVBR imposes an onus on victims of crime to request certain types of information, the state remains responsible for the rights to protection and participation. To fulfill these quasi-constitutional obligations, some information about protection and participation must be provided proactively.

What about privacy?

Based on a review of cases from 2015 to 2020, one of the most common complaints we receive about the CVBR and federal agencies is that victims did not receive important information because they were unaware of the need to register.[5]

In the 2020-2021 fiscal year, the CSC had 21,512 offenders in federal custody or in the community under supervision, yet in 77% of those cases, there were no registered victims.[6]

The Privacy Act protects the collection and sharing of personal information and is sometimes cited to explain why automatic information is not provided and that unsolicited contact from CSC or PBC would violate victims’ privacy rights. However, the identities of victims in the criminal justice system are rarely private. Victims of crime are required to file reports, be interviewed, provide statements and evidence, appear in court, testify, and be cross-examined. Unless there is a publication ban in place, throughout this process, everyone including the media are aware of their identity and what they experienced. Given that victim contact information has already been used extensively throughout the investigation and court appearances, concern for the victim’s privacy after conviction seems ironic. Furthermore, Section 8(2)(m) of the Privacy Act allows for disclosure of information for any purpose where, in the opinion of the head of the institution,

(i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or

(ii) disclosure would clearly benefit the individual to whom the information relates

According to what our Office has heard from victims, they want to be informed about the progress of an investigation, their right to access information, the possibility of attending a parole hearing, and the protocol for sharing safety concerns. We believe this victim-centred approach should guide decisions about how information is provided. Requiring victims to go through additional steps to access information and assistance causes further harm and violates the spirit of the CVBR. The onus should be changed from the victim to the government department. There should be an obligation to inform the victim unless the victim specifically opts out.

The preamble of the CVBR states that crime has a harmful impact on victims and on society, and that victims of crime and their families deserve to be treated with courtesy, compassion, respect and dignity. It also establishes the importance of considering victims’ rights throughout the criminal justice system and that this is in the interest of the proper administration of justice. The preamble also affirms that federal, provincial and territorial governments share responsibility for criminal justice. Ensuring that victims receive information that affects their safety and mental health throughout the criminal justice process including while the offender is in custody and released, is integral to the CVBR.

Many forms used to report a crime or provide a statement to the police include a checkbox to provide consent to be contacted by victim services of the province or territory of residence. Based on a MOU across provincial, territorial, and federal jurisdictions, this initial consent could be expanded to cover victim services throughout the country. Victims could be asked for consent to be contacted by local victim services in the event that they move or if the crime occurred outside their province or territory of residence, and, in the event that the incident results in a federal conviction, for consent to be contacted by federal victim services.

Whose information is it?

When someone is sentenced to federal custody, they are required to participate in a number of assessments and hearings. Offenders may disclose private and sometimes intimate information about victims during those hearings without the victim’s consent or knowledge. Despite its sensitivity, information is often withheld or handled as though it belongs exclusively to the offender, and victims have limited opportunities to be informed or review information for accuracy. The CSC uses official documents such as police reports, judges’ comments, court transcripts, correctional assessments, and victim impact statements to make decisions. However, we have received complaints about private or inaccurate victim information being included in decisions.

We have sought clarification from CSC and confirmed that a victim can submit an Access to Information request for any personal information that the offender has disclosed about them, but that process is not explained, and it may not be possible to correct inaccuracies.

Under the CVBR right to protection, section 11 states that every victim has the right to have their privacy considered by appropriate authorities in the criminal justice system. When sensitive information about victims has been disclosed, it should be shared with them, and responses to information requests need to better consider the privacy rights of victims.

Systemic racism limits access to victim rights and services

People who are Indigenous or Black are overrepresented in the Canadian criminal justice system as offenders and as victims of crime. In contrast, victims who are Indigenous or Black are under-represented in access to federal victim services.

·         In 2021, the Canadian homicide rate was 2.06 per 100,000

·         25% of homicide victims in Canada were Indigenous, despite making up 5% of the population[7]

·         For Indigenous women, the homicide rate was more than double, at 4.31 per 100,000

·         For Indigenous men, it was almost seven times higher, at 14.13 per 100,000[8]

·         15% of homicide victims in Canada were Black, despite making up about 4% of the population

·         The proportion of Black homicide victims was four times higher than non-racialized victims at 7.72 per 100,000 compared with 1.81 per 100,000.[9]

Registered victims

Despite higher rates of victimization and lethal violence, people who are Indigenous or Black are under-represented among victims registered with the CSC or PBC. Providing race-based data is voluntary, and Indigenous and Black victims who register may choose not to self-identify because of negative experiences interacting with law enforcement or systemic racism resulting in mistrust of government systems.

·         In the 2020-2021 fiscal year, the Corrections and Conditional Review Statistical Overview (CCRSO) reported 8,705 victims registered to 4,888 cases[10]

·         Of those registered, demographic data on a victim’s race are available for 2,732 people (31%)

·         Of those who shared demographic data on race:

o    2,230 people identified as White (86%)

o    172 people identified as Indigenous (6%)

o    71 people identified as Black (3%)

CSC and PBC are implementing an outreach plan to build relationships with organizations serving Indigenous and Black communities, and they are providing additional opportunities for registered victims to self-identify if they did not provide information at the time of registration.[11]

However, experiences of systemic racism in the criminal justice system or with victim services at the provincial or territorial level limit the number of Indigenous or Black people who will register with federal victim services.

At a June 2021 OFOVC webinar on systemic racism in the criminal justice system, Dr. Annette Bailey argued that race has become a predictor of access to victim services.[12] In her research with Black mothers in Toronto who had lost children to gun violence, she found that it was common for mothers to be denied criminal injuries compensation because their child was “known to police.”

We have noted other barriers shared by members of our Academic Advisory Circle and Frontline Service Provider Advisory Circles. In her research with Black women who had experienced partner violence, Dr. Patrina Duhaney found that women were hesitant to call the police for help because they feared the police may use excessive or lethal force on their partners or that they would experience racism personally. In a conversation with staff at the African Nova Scotian Justice Institute, we heard that offenders who are Black are less likely to be referred to restorative justice programs. Since victims of Black offenders are often Black as well, Black victims of crime have less access to these programs.

ACTION: The OFOVC is committed to addressing systemic anti-Black racism. In the 2024-25 fiscal year, we will convene a working group to explore systemic barriers to accessing victim rights and services. We hope this will complement Canada’s Black Justice Strategy, and that the strategy prioritizes rights and accessible supports for racialized victims.

We need more than public education

The JUST Committee recommended that Justice Canada be tasked with leading a national effort to develop training about victim rights for criminal justice personnel. In the government response, Justice Canada agreed, without committing to developing this training, with the need for training as well as raising awareness with victims about their rights and available services.

We agree with this recommendation.

The criminal justice process can be intimidating. Many victims, especially those facing intersecting barriers to accessing services, are re-traumatized, even humiliated, as they go through the system. Training on victim rights and trauma-informed practices can help criminal justice personnel better support victims of crime so they can provide their best evidence in court and access their rights.

But more needs to be done.

We do not rely exclusively on public awareness campaigns to inform people accused of crime about their rights. The Canadian Charter of Rights and Freedoms provides a proactive right to information, legal representation, and remedy in court for accused people and offenders. Notably, the CVBR falls short in these three areas.

Relying on informal mechanisms and public awareness to inform victims about their rights reflects an imbalance in the Canadian criminal justice system. When a person’s human rights to life, liberty, and security are violated, it does not make sense to provide stronger rights to the person who harmed them.

This contrast becomes grossly disproportionate in cases of gender-based violence, where men who have harmed women have stronger rights offered to them automatically. Women are required to ask for help, their rights are not binding, and the only remedy available is to file a complaint.

We would like to see recommendations to strengthen victim rights embedded in the National Action Plan to End Gender-Based Violence. Women are safer when they are informed, provided with access to independent legal advice,[13] and have standing to bring a challenge in court when their rights are not respected.

Bill S-12 is one of the first automatic offers of information to victims of crime provided in Canadian law. Since Indigenous and Black victims are underrepresented in victim services, the consistent application of S-12 should help to reduce systemic barriers.

When we appeared before the JUST Committee on Bill S-12, we highlighted an urgent need for public awareness and education on this new provision. The offer of information about the “sentence and its administration” is not explained on Victim Impact Statements or in the question a judge is required to ask.

This is an area where concrete legal reform and public education need to co-occur. Neither is sufficient on its own.

Proactive referrals

In 2011, the Royal Canadian Mounted Police (RCMP), a federally regulated police service, completed a Privacy Impact Assessment with the Office of the Privacy Commissioner of Canada about proactive referrals to victim services.[14] It was observed that, despite receiving information about victim services at the scene of the crime, many victims were not able to process the information because of the trauma they had just experienced. After considering section 8(2)(f) of the Privacy Act, which outlines conditions for a government agency to share personal information without consent, the RCMP applied the four-part test set out in R. v. Oakes[15] for necessity and proportionality and determined that the need to provide victims with support was “pressing and substantial.”[16] The MOU between the RCMP and the provinces and territories[17] clearly explains the conditions when victims would be provided with information about victim services in order to provide victims with an opportunity to offer informed consent or decline further services. In 2016, an amendment was made to the RCMP Regulations[18] in support of RCMP members proactively referring limited victim information to victim services organizations[19] when a person has suffered physical or emotional harm or economic loss as a result of a crime, offence or incident investigated by the RCMP, and when there are reasonable grounds to believe that victim services are necessary to preserve the peace, prevent the commission of a crime or offence, prevent physical or emotional harm or to protect the person from economic loss.

More recently, in 2021, Public Safety Canada, in collaboration with the CSC, initiated talks between provincial and territorial Victim Services regarding continuity of services for victims across jurisdictions. Subsequently, the CSC and the PBC have been working with the provinces and territories to explore and implement existing best practices on a national scale to strengthen continuity of services and information sharing.

Right to equitable access to quality supports and services for victims

Creating and communicating national minimum standards for all

We agree with the need for federal, provincial, and territorial collaboration to create and fund the implementation of national minimum standards consistent with the principles outlined in the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. In 1988, in honour of the Declaration, the Federal, Provincial and Territorial Ministers Responsible for Justice endorsed a Canadian Statement of Basic Principles of Justice for Victims of Crime and as such, the federal government has a responsibility to ensure that across Canada, victims and survivors of crime have equitable access to quality supports and services, regardless of where they live. This includes information, access to support services, and compensation. Currently, victims of crime in Canada have uneven access to services and it can be difficult for a victim to access services in their home province or territory if they were travelling through another jurisdiction when they were harmed. We are encouraged to see provinces like Québec strengthening their support for people who have been victimized outside of the province.[20] Another positive step was the creation of the Fund for Canadians Victimized Abroad in 2007. Through that fund, financial assistance is available to Canadians who are victims of specified serious violent crimes in a foreign jurisdiction.

Plan for diversity and inclusion

Victims of crime are diverse: their distinct needs must be considered in how services are planned and delivered. A person’s social location (gender, race, social class, age, ability, religion, gender identity and geographic location) plays a significant role in the accessibility of services. For example, Indigenous people may have specific needs in terms of their preferred language, the presence of Elders upon request, and increased service availability in rural and Northern communities. Additionally, the type of victimization (such as sexual assault or stalking) may create extra barriers to accessing relevant support.

We were encouraged to see the 2023 budget announcement of $95.8 million over five years and $20.4 million annually on an ongoing basis to support families of missing and murdered Indigenous people, Family Liaison Units, and Indigenous-led, co-developed victim services and supports.[21]

At the same time, police-reported hate crime has been rising steadily in Canada.[22] Many victims of hate crime have reported barriers reporting incidents to police or accessing victim services where they do not feel represented.

ACTION: The OFOVC is conducting consultations on hate crime with federal, provincial, and territorial stakeholders to learn more about barriers to reporting and accessing victim services. At the federal level, we would like to highlight the exceptional expertise of Canada’s Special Representative on Combatting Islamophobia,[23] the Special Envoy on Preserving Holocaust Remembrance and Combatting anti-Semitism,[24] and the 2SLGBTQI+ Secretariat at Women and Gender Equality Canada.[25]

Sustainable funding supports gender equality, innovation and better services

A right to access services is only meaningful if the services exist and have the capacity to meet the needs of those they serve. Victims of crime have complex needs. Many victim services across the country engage in demanding and complex work and are exposed to potential vicarious trauma and compassion fatigue but are poorly resourced. Compensation and benefits for service providers in the public service are generous, while some executive directors of women’s shelters struggle to pay their bills and keep their staff.[26] This lack of resources leads to high staff turnover and higher rates of psychological injury in a workforce disproportionately staffed by women.[27] Training in self-care is not sufficient to ease the burden of trauma work without adequate organizational support.[28] Sustainable funding promotes healthier workplaces that can invest in employee benefits and wellness programs, helping to retain staff and provide a higher standard of care to victims of crime.

Right to protection

Respect identity: How publication bans can have unintended harmful impacts

Many victims have been harmed by publication bans. Some survivors of sexual violence have engaged in advocacy, using the harm they have experienced to help others. They have shared that publication bans imposed without their consent or understanding have been harmful. Given that sexual violence violates the right to consent, publication bans placed without consent can be re-traumatizing for survivors.

Victims who choose to remove a publication ban on their name should be able to do so easily. The process to apply to remove a publication ban needs to be simplified. We have been encouraged to see the Royal Assent of Bill S-12 which modifies and clarifies the process for revoking publication bans. It will be important for the government to monitor the implementation of these changes. At the JUST committee, we stressed the importance of informed consent and providing victims with resources to help explain the pros and cons of publication bans. We have heard about rushed calls to survivors to ask about publication bans with little explanation. New resources will be required to help explain changes to the legislation.

During our consultations on Bill S-12, we heard from survivors with concerns about publication bans. Many highlighted the multiple barriers faced when they turned to the criminal justice system for help following sexual assault. We have also registered complaints about s 278.1 of the Criminal Code. While this process is intended to protect victims of crime, survivors have reported a chilling effect when the accused is able to subpoena personal diaries and third-party counselling records, including fear of accessing mental health services.

ACTION: In February 2024, the OFOVC launched a national systemic investigation into the experiences of survivors of sexual assault in the criminal justice system. This is a cross-jurisdictional investigation with provincial and territorial partners who have authority to make recommendations to their respective governments, while the OFOVC will bring recommendations at the federal level.

Respect Indigenous identity: Culturally Responsive Hearings with non-Indigenous offenders

In efforts to address the criminalization and over-representation of Indigenous people in custody, CSC has developed culturally responsive programming through consultation with Indigenous elders, associations, and community members. Currently, non-Indigenous offenders in federal custody can apply to participate in Indigenous programming while incarcerated. CSC policy requires these applications to be vetted and approved by an Elder employed by the service.

If a non-Indigenous person is accepted, they can participate in cultural programs and request a Culturally Responsive Parole Hearing supported by an Elder. When a request is made by a non-Indigenous offender, Parole Board Members will review the offender’s file (maintained by CSC), decide whether the process is appropriate, and document the rationale for their decision. Notably, this process does not request consent from the victims.

The OFOVC has registered complaints from family members of Indigenous women who were murdered, as well as Indigenous and victim advocacy organizations, concerned that non-Indigenous offenders  are offered greater control over how Indigenous culture will be used in the hearings. They feel that the provision of Indigenous programming to non-Indigenous offenders devalues their racial and cultural identities, reflects the continued colonial exploitation of Indigenous Peoples and their way of life, and appropriates resources intended to address the critical over-representation of Indigenous people in custody.

Since these complaints were first raised, PBC has consulted with their Indigenous Victim Advisory group and developed a policy to provide advance notification of culturally responsive hearings including an online resource describing the process. The CSC has been reviewing the admission criteria for their Pathways Initiative, and our Office facilitated a meeting between two Indigenous complainants and the CSC Deputy Commissioner of Indigenous Corrections. We believe further action is needed as part of the government response to the National Inquiry on Missing and Murdered Indigenous Women and Girls (MMWIG). There is not yet a policy in place for Indigenous victims to object to culturally responsive hearings requested by non-Indigenous offenders.

Right to participation

Victim Impact Statements: Freedom of expression

Victims of crime sometimes fill out two different, but similarly named, documents for proceedings. There is the Victim Impact Statement (presented at a sentencing hearing and set out in the Criminal Code) and the Victim Statement (read at a parole hearing). These similar names have caused some confusion. In French they have the same name (déclaration de la victime). In addition, victims report feeling overly restricted in what they can present in each of these documents. They have described excessive censorship, receiving redacted texts at sentencing hearings, and feeling constrained by the format. These restrictions limit their ability to describe the harm they have experienced. Because judges have the discretion to redact the statement in the official record if there is inappropriate language, there is no need to censor the victim during their main opportunity to express their pain and the impact the crime has had on them and their families.

Community Impact Statements: Considering collective trauma

Community Impact Statements, like Victim Impact Statements, can be prepared for the court and considered during sentencing. They provide a tool to consider the impact of collective trauma on a defined community. The person who submits the statement must identify why they are speaking for their community.

These statements allow the impact of offending to be considered in relation to broader structural and intersectional identities. For example, a representative might talk about the impact of a hate crime on their community or discuss the collective impact of Missing and Murdered Indigenous Women and Girls on their community. Community Impact Statements are an inclusive way to help establish the broader impact of crime. Given that Parole Board Members are required to consider all relevant available information in decision-making, we encourage PBC to explore providing direction to Board Members of whether there may be an appropriate role for community impact statements in parole hearings, specifically, if the community representative already participated in the sentencing hearing and can provide further context for release decisions.

Sustainable funding for restorative justice

For some, restorative justice allows a more meaningful way to participate in the justice system. The CVBR provides victims the right to request information about restorative justice opportunities. CSC advised our Office that they provide information to victims about restorative justice, including what services are available to victims, depending on the specifics of each victim’s case.

In fiscal year 2017–2018, provinces and territories throughout Canada reported:[29]

·         240 restorative justice programs funded

·         22,576 referrals to these programs

·         16,155 offenders accepted from the referrals

·         10,107 victims accepted from the referrals

Many restorative justice programs are poorly funded or must operate with short-term government funding. The CSC also offers a restorative justice program (called Restorative Opportunities) for victims with an offender in federal custody. The program received 122 referrals in the fiscal year 2021–2022.[30] Although CSC has advised our Office that they work with victims to leverage funding from Justice Canada’s Victim Fund to allow victims to attend hearings and restorative justice meetings, our office has heard that some victims require funding for travel to attend restorative justice meetings in correctional institutions.

Many Indigenous communities also facilitate traditional restorative justice practices, such as Peacemaking Circles, based on the belief that crime needs to be addressed by the community as a whole.[31]

We encourage more information about restorative justice and sustainable funding for these opportunities which some studies have shown to improve victim satisfaction and positive mental health outcomes.[32]

While restorative justice is a well-established practice internationally, there continues to be debate about what it should be called. In recent consultations at victims forum in the Prairie region, we heard that families affected by homicide can be offended by the term ‘restorative’ since their family member can never be restored. Even so, some remain interested in facilitated conversation with the offender. We received a follow-up letter expressing support for the federal restorative opportunities program, but requesting a more descriptive and trauma-informed name for the program that may encourage greater participation.

We also encourage communication materials with a greater range of examples of how restorative justice can be helpful to victims of crime. For example, the process may not be about restoring a relationship, but rather establishing boundaries and expectations for relationships following release from custody. This knowledge may help victims to decide if restorative justice is helpful for their specific circumstances.

Postponed parole hearings harm victims

Victims of crime do a lot of work to prepare for parole hearings. They prepare to relive the trauma, pay to speak with therapists, take time off work, pay for travel (which Justice Canada’s Victims Fund may reimburse),[33] rehearse their victim statements, arrange to have a support person attend with them and prepare their hearts and minds. When a hearing is cancelled or delayed at the last minute, victims report feeling devastated, angry, frustrated, confused and that they wasted their time, money, and emotional energy.

In a complaint to our office, family members of a homicide victim explained that every time the PBC calls, it feels like the day of the murder all over again. In their case, the hearing was rescheduled seven times in two years.

We have also heard concerns from victims about parole postponements being used as an intentional way to cause further harm to victims, particularly in serious cases of partner violence and attempted murder. Offenders should not have permission to cause ongoing harm to victims.

Section 140.1 of the CCRA stipulates that “if an offender has, on more than one occasion, refused to attend a review hearing or waived his or her right to a review hearing less than 15 days before the date scheduled for the hearing without providing a reasonable explanation for doing so, the Board may cancel the next review hearing to which the offender would otherwise be entitled to under this Act.” The PBC needs to consider the impact of reschedulings and cancellations on victims and use provisions that support the psychological and physical safety of victims.

We understand that scheduling hearings is highly complex and includes coordinating the schedules of Board members, parole officers, offenders and their support person, and occasionally elders. Victims are generally provided with three months notice about the expected month of a hearing, and then provided a specific date within the month of the hearing. In practice, this means that some victims receive only 8-10 days’ notice of the exact date of the hearing and have limited time to make the necessary arrangements for time off work, travel, or other logistics.

Additionally, the instructions provided to victims require that they register to observe a hearing 30 days in advance and submit a victim statement at least 30 days in advance. When a family has experienced multiple postponements, it is difficult to stay on top of these timelines. Receiving short notice about a parole hearing interferes with the CVBR and CCRA rights to participation, since some victims assume they have missed the deadline.

In practice, PBC is very accommodating with victim requests about timelines, and their Regional Communication Officers can help victims register to observe a hearing or submit a victim statement with less than 30 days if they have received short notice. We have requested a simple revision to the information PBC provides to victims to indicate that if the 30-day window has passed, victims can contact their Regional Communication Officer.

When scheduling hearings, PBC considers the principles of procedural fairness for the offender. That is essential. We would like to see this consideration balanced with stronger consideration of procedural fairness related to victim participation. For victims and their family members, it is not exclusively the offender’s hearing.

ACTION: In the 2024-25 fiscal year, the OFOVC will collaborate with PBC to conduct a systemic review of victim participation in parole hearings. This responds directly to the JUST Committee recommendation to improve the parole process for families, and further responds to concerns victims have raised with our Office.

Right to seek restitution

Under the CVBR, every victim has the right to ask a court to consider making a restitution order when deciding the offender’s sentence. If during the sentencing hearing, the judge or prosecution does not ask the victim whether they have considered asking for restitution, the victim may not have the opportunity to exercise that right. In some situations, judges will not order restitution if they believe the offender cannot afford it. Even if restitution is ordered, enforcement is very challenging. If the offender does not comply with the restitution order, the onus is on victims to take the matter to civil court for enforcement. This can be a costly and time-consuming process, and it is difficult to find instructions on how to bring the matter to civil court. Victims who have just endured a criminal trial should not be asked to return to court to access their right to restitution.

Restitution enforcement programs

We agree with the Committee recommendation to help enforce restitution orders. While some provinces have restitution enforcement mechanisms in place, the approach varies greatly. Meanwhile, many provinces and territories have no enforcement supports available to victims. Statistics from the Integrated Criminal Court Survey (ICCS) reported a total of 27,160 restitution orders made from 2015 to 2020.[34] Less is known about how many of these orders were fulfilled.

Table 2. Comparison of Restitution Enforcement between Canadian Provinces and Territories (illustrated in colouring on the map of Canada)

Right to remedy: Simplify complaints process

No legal remedies for victims of crime

If victims’ quasi-constitutional rights under the CVBR are not respected, they are permitted to file a complaint. However, they do not have an opportunity within the criminal justice system to appeal a decision, nor do they have automatic rights to legal counsel. Some jurisdictions now offer a few hours of free independent legal advice for survivors of sexual assault and survivors of military sexual misconduct may be able to access funding for independent legal advice.

Because there are limited opportunities within the current legal framework for victims to raise a challenge about their rights within the criminal justice system, the complaints process must be as effective as possible.

Complaints process

Based on Section 25 of the CVBR:

1. Every federal department, agency or body involved in the criminal justice system must have a complaints mechanism that deals specifically with the rights in the legislation.
2. If a victim feels that their rights under the legislation have been infringed or denied, the victim can file a complaint with the agency they feel has treated them unfairly.
3. If the victim is not satisfied with the response to the complaint, they have the option to contact the Office of the Federal Ombudsperson for Victims of Crime.

According to the current interpretation of the legislation, victims must exhaust all complaint mechanisms before contacting our office.

Since our office was founded in 2007, we have received approximately 250 complaints from victims about the limitations of our mandate. Moreover, since 2015, many of these have been related to the structure of the complaints process. Victims have raised the following issues:

• Impartiality: Some victims are reluctant to file complaints with an agency’s internal complaints mechanisms due to concerns that the agency is investigating itself.
• Timeliness: Policies governing the complaints processes at the CSC and PBC allow 20 to 25 working days for review and response to a complaint, with the possibility of an extension. When cases involve both agencies, the complaint may be reviewed by one agency and then passed to the other, increasing the time required for processing. For time-sensitive requests, these delays cause distress.
• Admissibility: Screening of complaints is based on existing policy rather than principles of administrative fairness. To illustrate, in the 2020–2021 fiscal year, the CSC reported that it had received 10 complaints.[35] Of those, six were deemed unfounded and 1 inadmissible.[36] In the same year, the PBC reported that it had received 21 complaints from victims.[37] Of those, 19 were deemed unfounded and 1 inadmissible.
• Sensitivity: If a complaint is rejected, the victim receives a letter notifying them that their complaint was “unfounded.” The term “unfounded” is difficult terminology for many victims, in particular family members of homicide victims and survivors of sexual assault.

We note that we have effective working relationships with both CSC and PBC and recognize the work these agencies do to resolve complaints and improve their policies based on feedback from victims. In practice, the agencies may not require the full 20 to 25 working days to respond to complaints, and both have taken many actions to improve their sensitivity to the needs of victims.

We are also pleased to see changes PBC has been making to their complaints process based on feedback provided through our Office. Responses to complaints have been improving in their sensitivity, and we are seeing faster resolution of victim concerns, with greater victim satisfaction.

At the same time, we have seen the added administrative burden of the complaints process on victims of crime. When victims contact us with their concerns, we do help them file their complaints with the relevant agency, and we are available to follow up on the response. However, our intake workers are required to ask victims to file complaints that we know will be deemed unfounded or inadmissible before we are able to intervene on their behalf. This is not an efficient use of limited government resources, and it is not trauma-informed.

We also acknowledge the perception of a power imbalance that victims have reported when they are asked to file a complaint with the agency they believe violated their rights. Many registered victims have a long-term relationship with CSC and PBC, depending on the sentence length of the offender who harmed them. Victims can be hesitant to complain to an agency that will continue to provide services in the future.

In other parts of the criminal justice system, we provide options for people to file complaints. For example, complaints about Royal Canadian Mounted Police (RCMP) conduct can be filed with the RCMP or with the Civilian Review and Complaints Commission (CRCC). In either case, the CRCC is the main point of contact to process complaints and will coordinate with the RCMP to ensure complaints are investigated.

Tracking systemic issues: Victim rights in Canada are still in development. An important part of the Ombudsperson’s mandate is to track systemic issues reported by victims and provide the Minister of Justice and Minister of Public Safety with recommendations for meaningful change. A streamlined complaints process would allow for earlier (and more accurate) identification of systemic issues and better-informed recommendations.

The CVBR should be amended to enable victims to choose a preferred method of making a complaint, either directly to the federal agency they believe violated their rights, or directly to the OFOVC. This would alleviate victims’ concerns about impartiality and address power imbalances. In comparison, federally-sentenced offenders are permitted to make a complaint to the CSC directly or to the Office of the Correctional Investigator (OCI) if they feel more comfortable doing so. Victims should have similar rights to the people who harmed them.

The OFOVC could be identified as the central agency responsible for receiving and reviewing victim complaints. The Office would case manage the complaints process, connecting with other agencies as required and tracking the outcome of each complaint. Filing complaints can be a difficult and confusing process. A trauma-informed approach offers choices to survivors to engage with the criminal justice system in the way that feels safest to them.

Governance and Resources

The OFOVC should be resourced comparatively to other federal Ombud Offices. We are the highest federal body dedicated to resolving complaints about victim rights, and while Justice Canada has on occasion provided some one-off supplementary funding, the OFOVC’s overall budget and authorities are currently inadequate. In a recent appearance at the House of Commons Standing Committee on Public Safety and National Security (SECU), the Correctional Investigator argued that the OFOVC requires supporting legislation and a budget comparable to the Office of the Correctional Investigator. Our two Offices often work on related complaints, with our team managing complaints from victims, and the OCI managing complaints from the people who harmed them, but with significantly more resources. In fact, we spend 20 cents on victim complaints for every dollar spent on offender complaints.

In addition, all other GIC-appointed federal ombuds serve a minimum of five-year terms, while the Victim Ombudsperson is appointed for three years. Since the Office was established in 2007, all of the Victim Ombudspersons have been new to the federal government and new to an ombudsperson role. A term aligned with other federal Ombuds would not only improve the Government’s return on investment in the OFOVC but would also provide better trauma-informed services for Canadians who contact our Office. This is particularly acute for family survivors of homicide victims who may be in contact with our Office for the duration of an offender’s life sentence. We have received complaints about the frequent transitions and vacancies in the ombudsperson role, since victims are required to continue repeating their story, and there is limited time to see resolution on larger systemic issues. A longer term would better align with the Venice Principles on best practices for Ombud appointments,[38] reduce organizational disruption, and reduce vacancies.

Finally, the OFOVC’s budget means that our leadership positions and complaints investigators are classified lower and paid less for similar work performed in other Ombud Offices. Our team works hard to support victims, with regular exposure to traumatic content.

Investment in the OFOVC compared to the Office of the Correctional Investigator is a strong indicator of the overall position of victims of crime and victim rights in Canada.

Victim Ombud Budget Far Lower than all Federal Ombuds

Ombud Office	Ombud level	Term	Annual Budget
Correctional Investigator	GCQ-6	5 years	$7.5 million
Canadian Armed Forces	GCQ-6	5 years	$7.9 million**
Responsible Enterprise	GCQ-6	5 years	$4.3 million**
Procurement	GCQ-6	5 years	$4.1 million**
Veterans	GCQ-5	5 years	$4.8 million*
Taxpayers	GCQ-4	5 years	$4.6 million**
Victims of Crime	GCQ-4	3 years	$1.5 million

*2021-22
** 2022-23

Evaluation of victim rights

Although the CVBR came into force in 2015, we still need a national reporting framework to measure its effectiveness. As the Government considers legislative amendments to improve conditions for victims of crime, we need to establish baseline measures to assess the impact on victims of crime. In our Progress Report on the Canadian Victims Bill of Rights (2020), we recommended a task force to collect data about victims. Improved data in all areas of victim rights would better support legislative and policy development and result in better support for victims of crime.

We recommend that the government commit to an in-depth 10-year review of the CVBR in 2025.

Conclusion

The JUST Committee report includes many recommendations that could strengthen victims’ rights in Canada. Victims of crime want to see positive change. They are tired of symbolic rights that are not enforced. Many of the proposed changes combined with our recommendations could have a significant positive impact, reminding us that victims of crime should be a protagonist in any process designed to bring justice. We can adopt a more compassionate and human response to victimization while respecting the rights and needs of people accused and convicted of causing the harm.

Some recommendations require legislative change, but many involve choosing best practices instead of minimum compliance – a simple shift from obligations to opportunities. We can make many improvements by listening to survivors and adapting or better understanding and applying policies to alleviate the secondary harms done by the criminal justice system. People who experience victimization open the door to the criminal justice system when they work up the courage to report what they have experienced or when something so terrible has happened that they no longer have a choice. We can choose to leave the door open—to do better. We can choose compassion.