Category:criminal justice system

The Need for a Healthcare Response to Violence in Canada

Interpersonal violence is often approached from different facets such as criminal, economic and health yet rarely are the actual health implications looked into, other than the immediate physical damage caused by violence. Yet, as the Global Status Report on Violence Prevention 2014 has found, the non-fatal consequences of violence are the greatest part of the social and health burden arising from violence and this burden is generally carried by women, elderly people and children throughout the world. This can include negative behavioural, cognitive, mental health, sexual and reproductive health problems, chronic diseases and social effects that all outweigh the physical injuries sustained from the violence.

It has been found that violence against women and children contributes disproportionately to the health burden, particularly child maltreatment and women who have experienced intimate partner and sexual violence have more health problems, incur considerably higher healthcare costs, make more visits to healthcare providers over their lives and have more hospital stays (including longer durations) than those who have not experienced violence.

This violence has also been linked to other adverse health reactions such as afflictions of the brain and nervous system, gastrointestinal and genitourinary systems, and immune and endocrine function. For the women going through or having survived intimate partner violence and other forms for violence associated with that, there are also sexual health implications, as chances for HIV and other sexually transmitted infections (such as syphilis), unwanted pregnancies and other reproductive problems skyrocket with experience of violence. This can include having low birth weight babies (16% higher risk) and chances twice as high of an induced abortion.

Evidently this violence also affects the behaviours of the victims and thus being exposed to violence is linked to high-risk behaviours such as alcohol and drug abuse, as well as smoking, which all increase the risks of several leading causes of death (i.e., cancer, chronic lung disease, liver disease, etc.). This can affect young victims as well, either as a learned behaviour or as backlash to their suffering, which becomes very dangerous.

There are also repercussions on victims’ mental health. The risk for anxiety, depression, post-traumatic stress disorder and suicidal behaviour is also heightened, not to mention that exposure to violence and men’s perpetration of violence against women have been shown to be associated with high-risk sexual behaviours. This can tie in with the aforementioned sexual health risks.

Unmistakably, with all of the health menaces associated with violence there are also a wide range of indirect costs, such as spells of unemployment, absenteeism and other health problems that can affect the victim’s job performance. There are also indirect costs that relate to lost productivity because of things such as premature death, long-term disability, the provision of places of safety for children and women, and disruptions to daily life for fear regarding personal safety. Obviously these indirect costs affect people at varying degrees and those with a less stable income to begin with, from poorer social economic classes are disproportionally affected. Those without proper social support (i.e. family/friends) can also be disproportionately affected.

Relatedly and just as importantly, there is the issue of other violent crimes like homicide and non-domestic assault, both of which can have long-term implications on health. The hazards associated with being victimized by violent crime also include engaging in negative coping mechanisms, such as substance abuse and said victims are at a much higher risk to turn to such behaviour versus the general public. Anxiety, depression and post-traumatic stress disorder also pose as huge perils. Furthermore, all of the aforementioned health risks have an impact and contribute to problems in regards to unemployment, loss of productivity and disruptions to normal, daily life.

Sadly, Canada does not take a public health stance towards victimization as a result of interpersonal violence or other forms of violent crime. We have chosen to instead focus on the causes of violence, over the impacts. Research done on restorative justice programs shows the positive impact RJ seems to have on the improvement of the psychiatric and physical health of victims. This is possibly because such programs focus on the harm (caused and suffered) versus justice processes. In Canada, many of the short and long-term health needs of victims and survivors alike go untreated as a result of this focus on justice. With violent crime being sudden and unpredictable, victims and survivors are at the highest risk for severe impacts from victimization, yet they have very few low-cost or free mental health supports or other healthcare services at their disposal. The CRCVC believes we must move toward a healthcare response to violence, without linking the services offered to offenders or perpetrators, in order to more fully address the impacts of violence on survivors.

JUSTICE DENIED FOR THE VICTIMS

In June of 2012, 28-year-old Fouad Nayel left his parent’s home in the suburbs of Ottawa. It was Father’s Day, and he told his cousin he would be back in a couple of hours with Chinese food to celebrate, which was their annual tradition. His family did not realize that this would be the last time they saw their loved one alive.

Following Fouad’s disappearance, a relentless search ensued which left his family, as well as the authorities, tired and frustrated. Nicole, Fouad’s mother, described the experience as a nightmare she didn’t know when would end, and said, “I haven’t slept. I haven’t ate. I haven’t done anything. I’m just a walking body.”

In November of 2012, a passerby contacted the police about human remains they had found in the woods near Calabogie, a town about 100 km west of Ottawa. Soon after, Fouad’s family were informed that their worst nightmare had come true, and that the remains found were identified as Fouad’s.

It did not take long for the authorities to piece together what they believe happened to Fouad, and less than a month later they arrested and charged 33-year-old Adam Picard with first-degree murder. Picard is a former member of the Canadian armed forces, and was accused of shooting Nayel from behind twice, following a drug-related altercation.

During the following years, the case went through a number of impediments that delayed it coming to trial, including the defence changing lawyers four different times. The Crown also faced numerous procedural challenges, including the prosecutors being involved in other murder trials. They were also tasked with unpacking a complex case involving two police services, 30,000 pages of disclosure and 78 witnesses. In August 2015 the defence brought an application to expedite the trial, but was met with resistance by the Crown as they felt that this would mean both of the assigned lawyers would have to be removed from the case.

The family remained patient, hoping for justice for Fouad.  They could not have imagined what was coming concerning their son’s alleged killer. Unfortunately, to their dismay and devastation, on November 15, 2016, Superior Court Justice Julianne Parfett issued a stay of proceedings, after a motion made by the defence.  Picard walked out of the courtroom a free man. Justice Parfett placed particular blame on the Crown, citing the lawyers’ unavailability and institutional issues as the main reason for the delays.

Fouad’s parents were appalled with the ruling, and did not understand how the justice system could let them down the way it did. Fouad’s mother Nicole asked, “What kind of message does this send? That you can (allegedly) kill someone and get away with it… What kind of judge would do this? The system isn’t fair.”

The decision by Justice Parfett was issued on the grounds that the 4-year delay in getting to trial violated Mr. Picard’s Section 11(b) Charter rights which guarantee the right to a trial without unreasonable delay. This decision follows the precedent defined by the Supreme Court of Canada in R. v. Jordan from this past July, which set new ceilings on how long an accused must wait for their case to get to trial. The new guidelines state that the maximum delay for serious charges going to provincial court must be 18 months, and 30 months for charges going to superior court (from the time from charges are laid to the actual or expected end of trial).

This was not the first time a first-degree murder charge was stayed in Canada due to unreasonable delays in getting to trial. Lance Matthew Regan, an incarcerated Edmonton man, was charged with first-degree murder in 2011 for the death of fellow inmate Mason Tex Montgrand. In October of 2016, a stay of proceedings was issued, with Justice Stephen Hillier ruling Regan’s constitutional right to be tried within a reasonable time being violated.

Another recent example of this is the case of George Kenny. Kenny was charged in 2005 for assault causing bodily harm, as he was involved in the fatal beating of 22-year-old Brian Fudge, at a bar in Ottawa. In September 2016, after a delay of 68 months, the Ontario Court of Appeal threw out his case issuing a stay of proceedings again for a violation of Section 11(b) Charter rights.

Although it is recognized that the accused’s rights must always be protected in a criminal justice proceedings, many legal scholars and criminal justice professionals feel that the R. v. Jordan ruling may be a misguided attempt at solving the problem of trial delays. Benjamin Perrin, (a law professor at the University of British Columbia), in writing for The Globe and Mail stated, “The Supreme Court was flying blind when it set the standards in R. v. Jordan and had no idea what impact its decision would have … Parliament should streamline the Criminal Code, focus it on serious offences and abolish unnecessary procedures.”

The recent decisions relating to these cases, point to the significant problems our justice system is currently experiencing. Thousands of cases clog up the system every year which never amount to anything, with many criminal charges being stayed or withdrawn (43.1% on average in Ontario, the highest in Canada). A study found that in Newfoundland and Labrador, up to 72% of court’s sitting time is spent on scheduling hearings alone. Both examples indicate the major inefficiencies within Canada’s court systems, and with the R. v. Jordan decision, may result in many more serious cases being dismissed.

The CRCVC echoes the concerns many raise about the potential impact the R. v. Jordan decision will have on subsequent cases being stayed. Our greatest sympathies go out to Fouad’s family and friends. While the Crown is appealing the decision, it is of little comfort to them. It is abhorrent that the most serious charges can be thrown out solely due to scheduling and procedural failures. Victims’ rights need to be considered and protected during the criminal trial. We will continue to advocate that victims be dealt with equitably, respectfully, and compassionately in our criminal justice system. To read our recent letter to the federal Minister of Justice & Attorney General regarding these matters, click here.

The Canadian Resource Centre for Victims of Crime offers support, research and education to survivors and stakeholders.

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