The federal ombudsperson’s office is necessary but insufficient

Are victims’ rights well protected in Canada?

When the Act for the Recognition of Victims Rights, also known as the Canadian Victims Bill of Rights, was adopted in 2015, it raised expectations and hope among victims of crime and the organizations that campaigned for its adoption.

Among these groups was the Association des familles de personnes assassinées ou disparues (Association of Families of Murdered or Missing Persons, AFPAD), founded by recently retired Senator Pierre-Hugues Boisvenu, who was one of the sponsors of the Canadian Victims Bill of Rights.

The bill has the status of a quasi-constitutional law, i.e. its status is similar to that of a constitution. However, the bill merely lists a series of directives that the players in the criminal justice system should take into account, as they see fit. It does not compel them to do so.

Since there is no authority specifically dedicated to ensuring the implementation of the Canadian Victims Bill of Rights, victims must rely on the Office of the Federal Ombudsperson for Victims of Crime (OFOVC).

My work on the rights of victims of crime at the Université de Montréal’s École de criminologie (School of Criminology) has led me to take an interest in the mandate and effectiveness of the OFOVC in enforcing victims’ rights, as enshrined in the Canadian Victims Bill of Rights.

OFOVC’s mandate

OFOVC was initially created to support Canada’s criminal justice system in implementing a victims’ rights framework.

Its mandate now extends to the Canadian Victims Bill of Rights.

This Bill defends victims of crime by providing them four important rights in the criminal justice system: the right to information, protection, participation and restitution.

The Canadian Victims Bill of Rights does not specifically mention the OFOVC as an institution dedicated to its implementation. It is only by interpreting the provisions of the bill, and the decree that created it, that this body has come to intervene in favour of victims’ rights.

Thus, in the event of a denial or violation of the rights guaranteed by the bill, victims must first refer to the complaints mechanism applicable to the federal entity against which the denial or violation is alleged.

The OFOVC’s role is therefore to ensure harmonization and consistency in the application of the Canadian Victims Bill of Rights within the federal system. It does this by providing an independent review of the handling of the victim’s complaint and may make corrective recommendations and inform the victim accordingly.

The exception is complaints that are handled unsatisfactorily by the RCMP, which may be referred to the more restrictive process of the RCMP Civilian Review and Complaints Commission, an independent body established by the Parliament of Canada in 1988.

In addition to handling victims’ complaints, the OFOVC promotes victims’ access to the programs and services intended for them by federal entities. It facilitates their access to these services by providing them with any information and support they may need.

In addition to working directly with victims of crime, the OFOVC has the strategic role of bringing the concerns and general needs of victims to the attention of political decision-makers. The OFOVC can undertake research and investigations and take actions on systemic issues and problems that have a negative impact on victims of crime. It can comment on current issues including urgent ones, such as the one that arose in the fall of 2023 concerning the transfer of federal offenders.

The OFOVC’s systemic and special reports draw legislators’ attention to neglected aspects of the rights of victims of crime.

The limits of the institution

Despite the crucial role it plays in implementing the rights of victims of crime, the OFOVC does not have the power to make these rights into a reality in their daily lives. Here are the organization’s three main shortcomings:

1. Recommendations only

The most important shortcoming lies in the limits of the OFOVC’s power. Whether it acts in response to a complaint or intervenes strategically, the ombudsperson can only issue recommendations. A victim who is informed that these recommendations have been made has no recourse other than to hope that they will be implemented.

The ombudsperson’s only means of exerting pressure is the power to publish a report when the federal entity does not act favourably on its own recommendations to take corrective measures. The limited strength of the OFOVC’s recommendations may explain why victims have made little use of the complaint mechanisms.

2. In Canada… but not in the provinces

The OFOVC has the power to implement the Canadian Victims Bill of Rights, but only at the federal level. As an Act of Parliament, we would expect the bill to be applied uniformly across Canada.

At the federal level, although some federal agencies are, or could be involved in criminal justice matters, they do not report to the OFOVC. These include the Canadian Judicial Council, the Public Prosecution Service of Canada and the RCMP. Nor can the ombudsperson intervene with respect to provincial entities responsible for the administration of criminal justice. That results in a disparity in the treatment of victims depending on which level of government ignores or violates their rights.

3. The appearance of a lack of independence

Finally, one of the most significant shortcomings of OFOVC stems from the fact that it is part of the Department of Justice. This affects its independence from an administrative point of view, but above all from a financial point of view.

The ombudsperson reports to the same minister of justice whose actions he or she is supposed to judge in terms of compliance with standards for the treatment of victims of crime. While the people who have held this position to date have shown great moral and professional integrity, the fact remains that the appearance of a lack of independence affects their credibility among the public. Being primarily an institution of the Department of Justice, the ombudsperson does not have an autonomous budget. They are, therefore, dependent on the strategic choices made by this department.

While waiting to enshrine truly effective rights that victims can enforce, themselves, in the courts, the legislator could begin by making the OFOVC an independent body that reports to the Canadian Parliament and is able to defend its own budget, and administer it autonomously.