Thursday, July 23, 2015
Today, the Canadian Victims Bill of Rights came into force. The Bill itself can be viewed at:
The Act enacting the Bill, which also outlines the associated changes to the Criminal Code, can be viewed at:
In this blog post I’ll be taking a look at some of the provisions of this new Bill and the associated changes to the Criminal Code. I’ll give some context here, as I think it is important to acknowledge the point of view from which I write. I am a criminal defence lawyer, who practices in Vancouver, B.C. As such, I have witnessed the introduction of many additions and changes to the Criminal Code over the last several years that I wholeheartedly believe to be detrimental to the justice system as a whole, and motivated by a desire to get votes. That being said, I will do my best in this article to put that aside, as well as any partisan political rhetoric, and do my best to be objective. I have previously worked for the B.C. Prosecution Service prosecuting crimes. I have also previously been a restorative justice practitioner for over 10 years, in which capacity I worked with many people harmed by crimes (victims) and advocated for a system that provided an alternative way for them to be involved in the outcomes of those crimes. I believe in the importance of the presumption of innocence and the protection of ALL Canadians by the Charter of Rights and Freedoms. I have been the victim of violent crime. I understand how being harmed by crime can cause a person to lose objectivity and be controlled by overwhelming and irrational emotions.
To start off with, I take issue with the title of the Bill. As someone with a background in criminology and restorative justice, I believe the labelling of someone as a victim is disempowering and can tend to set some people into a certain negative frame of mind when deciding how to react to a crime and how it has harmed them. Calling it the “Victims Bill of Rights”, in my opinion only helps to perpetuate this. That being said, “The Bill of Rights for Persons Harmed by Crimes” admittedly doesn’t have the same ring to it, and I suppose could possibly be confusing to the general population, so I’ll give this one a pass for the time being.
Overall, I think the heart of this Bill, is in the right place. For example, the Preamble and the initial sections on victims’ rights to information and protection within the system, generally, contain statements that everyone can get on board with. The problem is, most of them are already in practice, and the ones that aren’t seem to be written by someone with a rudimentary understanding of how the criminal justice system needs to operate on a day to day basis. For example, in section 13 it gives every victim “the right to request testimonial aids when appearing as a witness in proceedings relating to the offence.” The Criminal Code already had numerous detailed provisions relating to testimonial aids and limits their use to certain situations. Under new changes to the Code associated with this Bill, it seems as though every witness will now be able to apply for testimonial aids, including being able to give evidence from outside the courtroom. If every person who is a victim or witness to a minor crime makes an application to give their evidence from behind a screen with an assistance dog on their lap, the system will be totally bogged down. The previous system in the Criminal Code was set up to prevent that.
There are some anomalies created by the Bill as well. For instance section 4 reads:
4. An individual is not a victim in relation to an offence, or entitled to exercise a victim’s rights under this Act, if the individual is charged with the offence, found guilty of the offence or found not criminally responsible on account of mental disorder or unfit to stand trial in respect of the offence.
The purpose of this section is clear. They don’t want people who perpetrate crimes to use the Bill to say that they are also a victim (because the definition of victim in the Bill is very broad) and are able to exercise victims’ rights under the Bill. The issue becomes, what happens to the wrongfully accused? And despite what people may think, this happens more often than anyone would like to admit. Given this section, if a person’s spouse was murdered, and they were charged with the murder, and later the charges were stayed and someone else was convicted of the murder, this section would exclude the surviving spouse from claiming the rights of a victim under this Bill.
Rewriting the Law on Restitution Orders
So far, the portion of this Bill that has sounded the most alarm amongst the criminal bar has been the provisions relating to restitution orders. Previously, restitution orders were made during a sentencing hearing to repay money directly owed to a victim of crime as set out in section 738. There is now a new provision (section 737.1) that acts as a sort or preamble to that section, it reads:Court to consider restitution order
737.1 (1) If an offender is convicted or is discharged under section 730 of an offence, the court that sentences or discharges the offender, in addition to any other measure imposed on the offender, shall consider making a restitution order under section 738 or 739.
Inquiry by court
(2) As soon as feasible after a finding of guilt and in any event before imposing the sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages, the amount of which must be readily ascertainable.
(3) On application of the prosecutor or on its own motion, the court may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses and damages, if the court is satisfied that the adjournment would not interfere with the proper administration of justice.
(4) Victims and other persons may indicate whether they are seeking restitution by completing Form 34.1 in Part XXVIII or a form approved for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction or by using any other method approved by the court, and, if they are seeking restitution, shall establish their losses and damages, the amount of which must be readily ascertainable, in the same manner.
(5) If a victim seeks restitution and the court does not make a restitution order, it shall include in the record a statement of the court’s reasons for not doing so.
(Emphasis is mine.)
The issue here is the inclusion in these sections of the word “damages”. Although the existing restitution section (s.738) makes reference to restitution for some specified things that may have fallen under the term damages, they were clearly defined. It seems that the introduction of this new section, with the general term of “damages” included, may open up the door for victims to circumvent the civil law process and attempt to claim damages in a criminal matter that were previously unavailable.
This problem is compounded by the new definition of “victim” which this Bill has put into the Criminal Code. The new definition of victim reads:
“victim” means a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of the offence and includes, for the purposes of sections 672.5, 722 and 745.63, a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person.
(Emphasis is mine.)
With the inclusion of the alleged victim of crime in the definition of victim, this seems to open up the door for people to claim damages for crimes, even if it is not proven beyond a reasonable doubt at trial that they were victimized. For instance, a person may be charged with assaulting 2 people, but only convicted of, or plead guilty to, assaulting one of those people. The other person still fits the definition of victim, as they are a person against whom an offence is alleged to have been committed. At sentence for that offence that person could potentially bring a claim for damages under a restitution order. Although, it is reasonable to believe that a judge would not allow for such a claim, it seems entirely possible to have one ordered.
There is also a new and expanded form for victim impact statements which are put before the court at sentencing. This form allows for victims to put forward more information than was previously permitted. In a sentencing hearing the prosecutor has the burden of proving all aggravating facts beyond a reasonable doubt. If a victim puts forward consequences of the crime in a victim impact statement, that were not proven at trial or admitted on sentence, then the prosecutor is put in a position where they would need to prove those facts beyond a reasonable doubt if they are to be taken into account by the judge. The Bill further puts in place a new section that seems to relate to this circumstance:
Consideration of statement
(8) In considering the statement, the court shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection (1) and disregard any other portion.
Evidence concerning victim admissible
(9) Whether or not a statement has been prepared and filed in accordance with this section, the court may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged under section 730.
These sections seem to undermine the procedural fairness safeguards in place to prevent an offender from being sentenced on facts that are not proven. It even removes any evidentiary safeguards by allowing for “any other evidence” to be entered on sentence. This, in my opinion, leaves the door open too wide for unproven aggravating factors and allegations to come before the court.
As with any new legislation, only time will tell how it will play out in practice.
Overall with this Bill, what I see is an attempt to make the justice system more accessible for victims and to include them more in the process. The problem with doing that this way is that the system is set up to dispassionately and objectively deal with criminal acts, often in spite of the wishes of the victim. Despite how that may sound, if the criminal justice system were run at the direction of victims, it would be a brutal unsustainable and unfair system. Certainly there is more room for the needs of victims within the system, but doing so in a way that maintains the independence and state-driven nature of the system is essential.