BRIEF TO THE
HOUSE OF COMMONS
STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
41st Parliament, 2nd Session
The Victims Bill of Rights Act
Brief presented by the Canadian Criminal Justice Association
September 25, 2014
Background of the Canadian Criminal Justice Association
The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present this brief on Bill C-32, the Victims Bill of Rights Act, to the House of Commons Standing Committee on Justice and Human Rights.
The CCJA is one of the longest serving non-governmental organizations of professionals and individuals interested in criminal justice issues in Canada, having begun its work in 1919 and having testified before this committee on numerous occasions. Our association consists of nearly 700 members and publishes the Canadian Journal of Criminology and Criminal Justice, the Justice Report, and the Justice Directory of Services. We also organize the “Canadian Congress on Criminal Justice” every two years.
The Canadian Criminal Justice Association (CCJA) believes that the legitimate needs of victims should be accommodated, where reasonably possible, while respecting the rights of all parties in the criminal justice system.
The CCJA also believes that, as part of their healing, victims require opportunities to participate meaningfully in the criminal justice process. Meaningful participation includes the ability to confront those who are responsible for the harm caused, as well as access to timely and quality information about the process. Further, it is recognized that all measures should be taken to ensure that any participation by the victim is as free as possible from further victimization.
The Criminal Code currently provides the opportunity for victims to make impact statements to the courts. These statements ought to focus on the harm done to victims, their losses, and the long-term impact the offence has had on their lives.
Offenders should not be allowed to profit from their criminal acts at the expense of their victims. As a result, the CCJA is in favour of court imposed restitution orders, where practicable. In addition, provincial victim compensation boards and other provincial programs should assist victims of crime in addressing their urgent physical, emotional and financial needs.
The CCJA believes that victims should have access to all appropriate services, including expertise in trauma reduction. We strongly support victim-offender mediation as part of addressing the harm suffered by victims and strengthening offender accountability, rehabilitation and reintegration.
In view of the above, the CCJA proposes, as an alternative to Bill C-32 with its focus on “rights”, the creation of a Canadian Charter of Victims Services to outline and establish essential services for victims, including counselling, support, education and information, and realistic restitution and compensation. We believe this Charter should seek a federal-provincial-territorial agreement on national minimum standards of services for victims and facilitate the development of creative approaches to delivering these services.
Background to Analysis
The dynamics associated with victimization and attempts to remedy the harm caused by crime have challenged the minds of justice-oriented persons for centuries, and will likely do so for the foreseeable future. All too often in the past, victims have been left with a sense of injustice and with little recourse to change the system. This can easily lead to feelings of frustration and bitterness – the very antithesis of what is required to bring about justice.
The public discussion surrounding Bill C-32, the proposed Victims Bill of Rights Act, offers an opportunity for insightful and progressive leadership in the field of victimization. The Canadian Criminal Justice Association wants to be part of this movement and offers the following for consideration.
The purpose of the criminal justice system (CJS), first and foremost, is the search for truth — that is, to formally establish to a high degree of certainty whether an accused person has broken society’s laws, and if so, to then determine a proportionate measure of accountability on behalf of society, including the victim.
Given that the primary purpose of the CJS is the search for truth, it cannot fully or even adequately redress the personal loss and suffering of victims of crime. It was just not built for this purpose. The CCJA believes that victims are special participants in the CJS whose voices and experience are important to the determination of a number of issues in the criminal justice process. We also believe that victims deserve to be heard and understood, respected and treated with dignity. However, we are also of the view that most of the support and services required to effectively address the harm suffered by victims can only be found outside the CJS.
The proposed Canadian Victims Bill of Rights (CVBR), with its “rights” terminology, perpetuates the false premise that victims involved with the criminal justice system are embroiled in an ongoing struggle with accused persons and offenders that pits victims’ “rights” against the “rights” of accused and offenders. Given that fair trial rights and other Charter rights of accused and offenders are enshrined in the constitution, if there is such a competition, the so-called victims’ rights, being found only in statute, will always be subordinated to constitutional rights. This “conflict of rights” paradigm leaves victims feeling that they have lost out and that their rights have been trampled.
The very notion of a Canadian Victims Bill of Rights seems at odds with what we understand to be the nature and purpose of a “Bill of Rights”. Compare the proposed CVBR with the Canadian Bill of Rights or the Canadian Charter of Rights and Freedoms or, for that matter, the American Bill of Rights. These latter documents enshrine human rights and fundamental freedoms for all individuals of a society, not just for a particular subset of individuals, no matter how deserving.
The “rights” promised in the CVBR are only for victims of crime and, in fact, only for “victims” who meet the narrow definition of the CVBR. Furthermore, these “rights” appear from an examination of the Bill to be rights without remedies. Rights without remedies — effective enforcement mechanisms — seem little more than promises. It is also worth noting that much of what is “enshrined” in the CVBR appears to already exists in law and related policy.
The CCJA urges government to adopt the alternate approach of a Charter of Victims Services. However, we also wish to note that there are a number of specific aspects of Bill C-32 that cause our membership concern. Given the large number of amendments proposed in C-32, it is not practical to raise here all of our concerns. Instead, we will focus on the following specific points as representative of our concerns.
Omnibus bill approach and amendments to the Canada Evidence Act:
In addition to the CVBR, Bill C-32 contains numerous amendments proposed to other statutes like the Criminal Code and the Corrections and Conditional Release Act. The clauses in C-32 proposing amendments to the Criminal Code alone outnumber the sections proposed for the CVBR. Why is it necessary for the government to cloud its policy vision for victims with so many other amendments? This omnibus style approach to an important area of social policy obscures the matters buried within, making it difficult to see and appreciate what is being proposed.
A good example of the omnibus nature of Bill C-32 is its inclusion of a significant legislative change to the provisions governing the competence and compellability of a person to give evidence against their spouse[i]. While this amendment has some relevance to victims, it also affects a large number of spouses who do not meet the definition of victim. It clearly will have a significant impact on the strength, cohesion and privacy of the marital relationship. It also raises numerous policy questions around the issues of same sex couples and common law couples. We believe a proposed amendment with such potentially wide-reaching social consequences should be the subject of consultation, review and debate on its own merit, instead of being combined with a large number of amendments that are only partially related.
Override provisions and consequences:
Bill C-32 attempts to give the CVBR a “quasi-constitutional” status of precedence over most other federal statutes.[ii] This proposed “quasi-constitutional” status perpetuates the false notion or dichotomy that within the CJS, there is an ongoing struggle or conflict between accused rights and victims rights. The simple truth is that fair trial rights of the accused are constitutional rights protected under the Charter and hence, if there is a conflict, fair trial Charter rights will always override statutory rights, even “quasi-constitutional” rights. Victims should not be misled about this reality.
Additionally, in proposing that the CVBR “prevail” over almost all other federal statutes, we question whether sufficient thought was given to the possibility of unintended consequences and conflicts with other federal statutes? For example, the C-32 victims rights of information, protection, participation and restitution might be found to conflict with:
- government actions in response to a national emergency under the Emergencies Act; or
- voter fraud proceedings under the Canada Elections Act; or
- alternative measures proposed by the Crown under the Canadian Environmental Protection Act.
The same potential for conflict could arise with respect to the accused’s discretion or choices under the Criminal Code. For example:
- the accused might elect trial by judge alone, where the victim prefers trial by jury; or
- where defence or Crown request a Preliminary Inquiry, the victim may not want one to be held; or
- an application by the accused or Crown for a change of venue for the trial, might be opposed by the victim.
We believe there is a significant potential for increased litigation and unintended consequences from the resolution of conflicts between the CVBR, with its override, and other federal statutes.
Definition of Victim:
The CCJA believes that the Bill C-32 definition of “victim”, with all its exclusions, is under-inclusive. We recommend that if the Bill goes forward, the Government consider including other types of victims. In particular, we urge the Government to include all vulnerable witnesses, first responders who suffer harm as a result of the offence, and family members of the perpetrator. With respect to the latter group, it is important to remember that a significant amount of crime occurs within intimate and family relationships, and not just between strangers. In addition, because the focus of C-32 is clearly victims of crime, we suggest that it would be more appropriate for the proposed Canadian Victims Bill of Rights to be renamed the “Canadian Victims of Crime Bill of Rights”, recognizing that there are many other kinds of victims of tragedy whose needs would not be addressed by Bill C-32.
Community impact statements:
The CCJA is of the view that society has already delegated to a select group of actors in the CJS, the responsibility to assess harm done to the community by the criminal act. These individuals — judges, prosecutors, correctional and parole personnel — have acquired the needed expertise to prosecute, sentence and administer justice on behalf of the community. The CCJA believes that these individuals will act on our behalf as an impartial third party between offenders and the community and victims. The CCJA maintains that it is necessary for our chosen ‘experts’ to be knowledgeable, through years of training and constant upgrades to this knowledge, about the impact of crime on victims and the community. This training must include science-based knowledge on the various issues faced by communities and victims.
We question why the federal government has not set aside significant resources for victims for counselling, education, support, and compensation. Unfortunately, it often appears easier to quickly pass legislation and then forget about the issue, rather than working over the long term to find real solutions and effective responses to victims’ concerns. We acknowledge that some victims’ services already exist.[iii] Regrettably, the existing services are not universally available throughout Canada and clearly not comprehensive. For this reason, we are recommending the development of national minimum standards for services for victims (see below).
Position and Recommendation
Instead of the proposed Canadian Victims Bill of Rights, the CCJA strongly recommends the creation of a Canadian Charter of Victims Services to outline and establish services that could truly redress the harm suffered. These services would necessarily include components like counselling, support, education and information, realistic restitution and compensation and, of course, the resources required to deliver them. We believe this Charter should incorporate a federal-provincial-territorial agreement on national minimum standards of services for victims. It would also facilitate and encourage the development of creative approaches in delivering these services.
In order for this Charter to be significant and representative of what victims need, the following should be included:
- Services that are accessible to all Canadians who meet the criteria of a broader definition of “victim” than that in Bill C-32. Such a definition would require a national agreement and be representative of varying types of victimization and yet, be manageable in terms of service delivery.
- Services directed towards establishing trauma centers across Canada specializing in a wide range of trauma intervention and remedy for victims.
- Services that provide education about all components of the criminal justice system (from investigation through to offender release) and how the process will unfold.
- Services that provide quality and timely information to victims with respect to the criminal justice, corrections and early release processes associated with their victimization and the subsequent outcomes of those processes.
- Services that afford victims a real opportunity to become directly and appropriately involved in the pursuit of justice related to their personal victimization (for example, programs to assist victims to prepare and file impact statements).
- Services that provide reasonable forms of compensation and reparation for victims.
- Services that help victims move beyond the victimization perspective and become positive and fully functioning survivors, including voluntary victim-offender reconciliation.
The CCJA strongly urges government to develop and implement a Canadian Charter of Victims Services, rather than the Canadian Victims Bill of Rights proposed in Bill C-32. What victims of crime need (and all categories of victims for that matter) are services, rather than so called “rights”. Rights without access to needed services are meaningless, particularly when those “rights” are without real remedies.
What we have outlined above will take work to formulate. The CCJA would be eager to start a conversation about how appropriate and comprehensive services to victims can be addressed though such a Charter.