Bill C-479 – A Question of Perspective

The Government has announced its support for a Private Members Bill that was reintroduced in February after a short life in 2011. The Bill, which is before Committee as of this writing, is entitled An Act to Bring Fairness for the Victims of Violent Offenders.  

This  is typical of the approach of the government in its anti-crime blizzard of legislation. ( It also repeats the tactic of letting private members bills take the lead in policy)  The title is intended to appeal to  the vast majority of conservative and centrist electors who accept the ideas that :

  1. the “system”, in recent years, has unjustly upheld the rights of criminals
  2. the law must be made stricter in terms of punishments in order to combat crime and make law abiding people safe
  3. victims have been unfairly treated in the criminal justice system

Many, including your humble servant,  have commented extensively on the inaccuracy of points 1 and 2. Point 3 will be our focus in this post – because it is an even more insidious premise, and perhaps more dangerous to public safety, than the other two.

ARE VICTIMS CURRENTLY TREATED UNFAIRLY?

No one with knowledge of how the criminal justice works, would deny that victims were long deprived of entitlements and services that contribute to their rights  to be active participants in the prosecution, supervision and release of offenders. In the last twenty years, or so, changes have occurred that go a long way to addressing these gaps, to wit:

  • The system of providing victim impact statements has been enhanced so that harm is considered in the sentencing process much more accurately and completely.
  • Federal corrections law and policy allows thorough communication of information to victims on their perpetrators’ progress toward safe release and on their whereabouts after release [1]
  • Victims may attend parole hearings as observers and may read statements to the parole panel on the original, and continued, impact of the crime on them [2]
  • Victims, as persons who “have an interest” in the case,  are almost always entitled to receive a copy of the Board’s written decision on an offender’s release application – which includes details on the offender’s release plans and conditions under which the release will be supervised.[3]
  • Until recently, there was a growing trend toward restorative justice procedures, which permit communication between victims, the community and offenders – and permit accountability,  real redress and restoration of a respectful,safe relationship inane cases.

It is true that these victims entitlements are subject to rules that permit corrections or Parole Board officials to limit them for reasons based on accepted principles of security and privacy. I have highlighted these limitations in the legislation cited in my footnotes. The operational purposes of these restrictions, which are seldom used, are

  1. to ensure that the presence of victims (and other observers) at hearings does not disrupt the ability of the Board to do its job – assessing the offender’s risk – in a reasonably civilized and calm fashion, just as with other tribunals
  2. to ensure that disclosure of information to victims (and others) meets an important interest, such as the person’s personal safety, that outweighs the offender’s safety or privacy.

Privacy, in the case of a released offender, has a more significant impact than for others. Where information on an offender’s location is disclosed to a victim, it can be assumed that this will become public. This, depending on the offence involved, could lead to very dangerous circumstances and will often require the implication of law enforcement officials.

So, in essence, the rules currently recognize the needs of victims to be informed, in particular where their safety is concerned and to provide input to assist in the informed, safe progress of the offender through the courts, prisons and into the community, to which the vast majority ultimately return.

The argument, then, can be made that there are already measures in place that approach  a reasonable balance among the rights and needs of society, victims and offenders – or at least could do so, if woefully restricted financial support were available.

THE PRICE OF “FAIRNESS” – FROM BAD TO WORSE

Bill C-749 upsets the current balance in ways that do not significantly improve victims rights and which will increase the waste and danger of our already damaged correctional system. The harm falls under three general categories.

Procedural changes

Some of the amendments in Bill C-479 [4] reflect greater, more presumed, access to offender information and greater influence in parole hearings. These purport to redress the inadequacies of the current system for victims.

In C-749 the right of victims and members of their family to attend hearings is presumed, subject to the Parole Board’s decision that the the hearing would be disrupted by their presence. This is not very different from the current provision but wording is added

  • removing the Board’s right to impose conditions to the manner in which victims(etc) may participate and placing a great onus on the Board to meet victims need to attend
  • removing the Board’s obligation to consider the offender’s views on this issue.

It may be argued that the Board could still exclude a victim or others (who may not have even been involved in the original offence ) provided they could show that offender’s concerns create a situation that would disrupt the hearing. In reality, though, offenders with legitimate concerns about how certain observers would affect their ability to function cogently in a hearing would not have to be heard. In fact, no inquiries about these concerns would be permitted under the amendments.

The Bill stipulates that victims’ statements made at the hearing (or in writing) must be considered by the Board in taking its decision on the offender’s release. At first blush, one might question why this provision is even necessary, given that victims already have the right to make a statement abiout the impact of the offence on them.

I fear that there is more involved here than simply reassuring victims of their right to make a statement. It may be that the rules of interpretation would prompt the Board, or later a Court, to infer that Parliament had some intention in making this change. Accordingly, the victim’s statement, even if considered irrelevant, alarmist, vague or otherwise untruthful might still have to be given some weight. The Board, which can often “exercise its discretion” quite broadly might put more weight on the statement than would normally be expected of a reasonable, expert adjudicator.

Informational/privacy changes

Even if the “procedural” group appear somewhat innocuous – they are still subject to some control by the adjudicator, if not by the offender-  amendments to information provisions provide virtually no protection to offenders.

One provision takes away any discretion on the Board’s part and requires victims to be provided information on the offender’s whereabouts on release and the conditions imposed on his release. This information is presumably provided irrespective of whether the release will affect the victim, for example, whether the offender is moving to the victim’s community. The information will be “out there” to be made available to the press or social networks or simply the grapevine. The offender will be “outed”, especially if he/she move to a smaller or rural community.

One notes that current Canadian rules for the registry of sex offenders provide for disclosure beyond Police Services only in urgent cases. This is because it has been found that open registries, such as in Texas, tend to backfire. Offenders go undercover and/or are unwilling to participate in community supervision and support programs that have been demonstrated to reduce their risk. Public safety is reduced.

And if the principle of automatic victim notification for ALL offences is enshrined, this uncontrolled risk will apply beyond the area of sex offences.

Finally, the Bill mandates sending a copy of the transcript of a parole hearing to the victims or their families on request. Suffice to say that there can be some pretty intense and personal things said by the parties to a hearing – for example, things related to psychological, medial, sexual, substance abuse and other areas that may have nothing to do with any danger or, “need to know” for the victim or their families. Under this amendment, the details of what is said will become quotations for whatever media the recipients wish to contribute to.

This is not simply a privacy issue and a potential safety issue on the community. It will also doubtlessly have an impact on the offender’s willingness to disclose things that go to his/her risk or rehabilitation. This kind of potential “chilling effect” has been recognized in other contexts as a reason for protecting information disclosed in circumstances where there is at least some expectation of privacy.

Changes in parole eligibility

The Bill provides that that decisions denying  day parole or full parole will be reviewed every five years in the case of offenders serving two years or more federal for “offences involving violence”. The period for review of releases that are cancelled or terminated (i.e. not revoked) will be four years for he initial review and five years for subsequent reviews. The current legislation sets reviews for most offences at two years.

An “offence involving violence” is defined as murder or any Schedule I offence”. This refers to Schedule I of the CCRA [5]. The Schedule sets out offences whose severity varies greatly. It includes, for example:

  • high treason
  • hijacking
  • aggravated assault
  • extortion
  • sexual assault
  • causing bodily harm by criminal negligence
  • dangerous operation of a vehicle while street racing
  • mischief that causes actual danger to life

Clearly this will add several years to parole reviews for many offenders for offences that do not necessarily portend grave danger to the community down the line. Once the Parole board has made an initial negative decision the further opportunity for release will necessarily be either eliminated or substantially delayed.

Many initial denials of release are made for reasons that can be remedied by appropriate programming or treatment well within two years. The result of this amendment will be to leave many unmotivated prisoners behind bars, well after they should be benefitting by necessary and appropriate  community supervision.

More over-crowding will occur, with the inherent expense and danger that arises from it.

All this begs the question – how is this “fairer” for victims? I can only speculate that the idea is to remove the burden of victims having to attend and otherwise participate in “frequent” reviews for “violent” offenders.

Thus, in return for decreased inconvenience and stress for victims, the Bill would countenance increased tension in institutions and decreased access to necessary measures that make offenders less dangerous.

Other effects

First, the Bill does nothing to recognize or to address a real need of victims, communities and offenders – the opportunity to gain an understanding of what transpired with respect to the offence and to ensure that offenders are accountable to their victims. This means Restorative Justice. It is a process that has permitted victims to achieve real reassurance as to their safety and offenders to try to make amends for their actions.

It works. But it is a disappearing process, despite token publicity.

Second, the Bill speaks not at all to measures that have helped to provide fairness to victims by reducing the risk of their perpetrators. Circles of Support and Accountability, community skills and employment programs, substance abuse treatment, effect transition to mental health care programs, all of these are seriously under-funded, and at immediate risk of disappearing in the case of many community agencies .

PERSPECTIVES

Victims rights are very important, not just for victims but for all of us. We need to address the need of victims to feel that justice has been done and, more importantly, to feel safe from the horrors that many of them have experienced.

There are two poles of perception on how this can be achieved.

On the one hand there is the perspective that maximizing punishment and  direct victim impact on punishment will somehow bring closure and satisfaction to victims. To be fair we must ensure that that the balance of suffering is somehow achieved.

On the other hand there is the perspective that effective and demonstrable rehabilitation of offenders, combined with a dialogue involving information and accountability between victims and offenders, will produce safety and real reassurance for victims.

This Bill chooses the former perspective. I will sleep better under the latter.

———————————————————————

Footnotes

[1] per s.26  of the Corrections and Conditional Release Act:

  • 26. (1) At the request of a victim of an offence committed by an offender, the Commissioner
    • (a) shall disclose to the victim the following information about the offender:
      • (i) the offender’s name,
      • (ii) the offence of which the offender was convicted and the court that convicted the offender,
      • (iii) the date of commencement and length of the sentence that the offender is serving, and
      • (iv) eligibility dates and review dates applicable to the offender under this Act in respect of temporary absences or parole; and
    • (b) may disclose to the victim any of the following information about the offender, where in the Commissioner’s opinion the interest of the victim in such disclosure clearly outweighs any invasion of the offender’s privacy that could result from the disclosure:
      • (i) the offender’s age,
      • (ii) the name and location of the penitentiary in which the sentence is being served,
      • (ii.1) if the offender is transferred, a summary of the reasons for the transfer and the name and location of the penitentiary in which the sentence is being served,
      • (ii.2) if the offender is to be transferred to a minimum security institution as designated by Commissioner’s Directive and it is possible to notify the victim before the transfer, a summary of the reasons for the transfer and the name and location of the institution in which the sentence is to be served,
      • (ii.3) the programs that were designed to address the needs of the offender and contribute to their successful reintegration into the community in which the offender is participating or has participated,
      • (ii.4) the serious disciplinary offences that the offender has committed,
      • (iii) the date, if any, on which the offender is to be released on temporary absence, work release, parole or statutory release,
      • (iv) the date of any hearing for the purposes of a review under section 130,
      • (v) any of the conditions attached to the offender’s temporary absence, work release, parole or statutory release,
      • (vi) the destination of the offender on any temporary absence, work release, parole or statutory release, whether the offender will be in the vicinity of the victim while travelling to that destination and the reasons for any temporary absence, and
  • (vii) whether the offender is in custody and, if not, the reason why the offender is not in custody.

[2]  From s.140 of the CCRA

(4) Subject to subsection (5), the Board or a person designated, by name or by position, by the Chairperson of the Board shall, subject to such conditions as the Board or person considers appropriate and after taking into account the offender’s views, permit a person who applies in writing therefor to attend as an observer at a hearing relating to an offender, unless the Board or person is satisfied that

      • (a) the hearing is likely to be disrupted or the ability of the Board to consider the matter before it is likely to be adversely affected by the presence of that person or of that person in conjunction with other persons who have applied to attend the hearing;
      • (b) the person’s presence is likely to adversely affect those who have provided information to the Board, including victims, members of a victim’s family or members of the offender’s family;
      • (c) the person’s presence is likely to adversely affect an appropriate balance between that person’s or the public’s interest in knowing and the public’s interest in the effective reintegration of the offender into society; or
      • (d) the security and good order of the institution in which the hearing is to be held is likely to be adversely affected by the person’s presence.

      (10) If they are attending a hearing as an observer,(a) a victim may present a statement describing the harm done to them or loss suffered by them as a result of the commission of the offence and the continuing impact of the commission of the offence — including any safety concerns — and commenting on the possible release of the offender

[3] From s. 144                                        

(1) The Board shall maintain a registry of the decisions rendered by it under this Part or under

paragraph 746.1(2)(c) or (3)(c) of the Criminal Code and its reasons for those decisions.

  • (2) A person who demonstrates an interest in a case may, on written application to the Board, have access to the contents of the registry relating to that case, other than information the disclosure of which could reasonably be expected
    • (a) to jeopardize the safety of any person;
    • (b) to reveal a source of information obtained in confidence; or
    • (c) if released publicly, to adversely affect the reintegration of the offender into society.
  • (3) Subject to any conditions prescribed by the regulations, any person may have access for research purposes to the contents of the registry, other than the name of any person, information that could be used to identify any person or information the disclosure of which could jeopardize any person’s safety.
  • (4) Notwithstanding subsection (2), where any information contained in a decision in the registry has been considered in the course of a hearing held in the presence of observers, any person may, on application in writing, have access to that information in the registry.

[4]   http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6005283&File=24

[5] http://laws-lois.justice.gc.ca/eng/acts/C-44.6/page-71.html#h-96

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