Bill C-32: The new victims bill of rights in Canada. The presumption of victim vs. the presumption of innocence.
Today the Conservative government released the newly drafted Bill C-32 Victims Bill of Rights (“The Act”). You can find the text to the full document here. Bill C-32 – Projet de loi C-32 The bill focuses on providing victims with broad ranging rights in criminal proceedings. Some of those rights would include:
- Compelling spouses to testify against their husbands or wives;
- Obtaining copies of the bail or probation orders relating to the accused;
- Testimonial aids;
- Concealing the identification of witnesses and alleged victims in criminal proceedings;
- Knowledge about the criminal process and the role of victims, the services and programs available to them, and their right to file a complaint if their rights are infringed;
- Knowledge about the status of the criminal proceedings, the location, the progress, and outcome;
- Conveying their views about the justice system that affect their rights;
- Present victim impact statements and have them considered;
- Procedures for hearing from the victim on compensatory harm done to them akin to a civil proceeding where evidence may be called and considered;
- The Court making restitution orders against the offender that is enforceable as a civil judgment;
- Increased restrictions on judge’s discretion in imposing victim fine surcharges;
- Broadening the reasons and means for witnesses to have support workers present and testify outside the courtroom.
The proposed Act is far reaching with fundamental changes to the Criminal Code in relation to how accusers and victims are perceived in the justice system. Complainants are now victims, even from the outset where an accused has yet to be proven guilty of any offence.
The Act seems to drastically shift the presumption of innocence of an accused, to one of a presumption of criminality and assumed victimization. A much greater emphasis is placed upon the protection of society, restitution of the victim, and and mandated input from the victims. It places a great deal of protectionism to victims and witnesses through publication bans, public exclusion orders, enhanced protection to third party records, and support mechanisms. The standards to engage these mechanisms are much lower than previously employed.
Please note that this article is written after a cursory review of a present C-32 draft. In no way is this article exhaustive but simply points to some of the most significant changes as this author sees it with particular focus on Criminal Code amendments (as opposed to Corrections Act changes).
Who is a victim?
The Act defines, and alters the common interpretation of what a “victim” means. The definition means anyone who “has suffered physical or emotional harm, property damage or economic loss as the result of a commission or alleged commotion of an offence.”
For the purposes of the Act, a victim not only includes the person directly harmed by the crime, but also where the victim is deceased: the spouse, a person in a conjugal relationship, a dependant, a relative, a person responsible for the care of the deceased. It is of note that these definitions do not require that the person’s death was a result of a crime, or the crime of subject (for example, a person who was murdered). These individuals could act on behalf of the deceased victim regardless of the person’s cause of death.
It is of note that the term “complainant” is replaced at large, and now would read “victim” in its place. For example, an amendment under 486.4 would now read “…any information that may identify the victim…”. The Act places a strong presumption of victimization over there presumption of innocence and uses such terminology to emphasize that. See also 486.4(2) as another example. Up to the present, the term “complainant” was used in circumstances where the charges have yet to be proven.
The change in terminology is subtle but important and will likely permit prosecutors to refer to the witnesses as “victims” even before juries as the Criminal Code now defines them as such. I would expect that such terminology will cause a great deal of controversy for defence lawyers who might see it as overly prejudicial and conclusory.
Significant procedural changes to the Criminal Code and other Acts.
The victims bill amends significant aspects of the Criminal Code of Canada. Those changes affect, among other things, the openness of courts and identity of persons making accusations and witnesses, the expansion of support workers, a changing of terminology to “victim” from the commencement of proceedings, and and overall change in attitude and prioritization of sentencing to one of protection of society over rehabilitation and other objectives.
Limitations and additional mechanisms to obtaining third party records:
The Act seeks to amend the mechanisms for which third party records may be produced and for what offences. The act will amend the sections set out in 278 of the Criminal Code (and the various subsections and clauses). Among other things, the Court must also assess the “personal security” of the victim in making such assessments of disclosure.
Broadening the offence of Intimidation of a justice system participant or a journalist
Broaden the offence for intimidating justice system participants under 423.1(1) so that it relates to “any” conduct as opposed to “conduct” per se.
Excluding the public from court proceedings.
Broad language and considerations in making a public exclusion order under 486(1) of the Criminal Code with a long list of considerations. These orders would allow the judge to exclude all members of the public and media when these factors apply so that only the lawyers and Court staff may be present. These terms are much broader than what has existed in the past which sought to foster transparency and an open-court principle. The Act proposed would require a Court to seriously balance the open-court principle to the rights of the victim and privacy interests.
The broadening of Court orders under 486 to have a support worker present for all witnesses and to testify out of court.
At present, the Court must grant the ability for a witness under the age of 18 or who has mental or a physical disability to have a support person present and close during testimony when a prosecutor brings such an application. For persons over 18, a court may grant such an order upon application of a prosecutor or the witness themselves.
Under the new proposed legislation, the Court may bring its own motion to do so out “in respect” of the witness even if the prosecutor or witness does not request it. The amendments would also allow a person under the age of 18 or a person with a mental or physical disability to bring such a motion. Another significant change is that the test under 486(2) is reduced to if the support worker would “facilitate” the giving of testimony, as opposed to it being “necessary” under present legislation. A number of factors to make this consideration are enumerated.
Identical amendments with the same factors are made with respect to witnesses who wish to testify outside of the Courtroom for witnesses under 18 (or with disabilities), or other witnesses.
The protection of witnesses’ identity:
The Act seeks to add the ability for a Court to make an order that a witness’ identify not be disclosed to the public. This application may be brought by the witness themselves, or the prosecutor.
The obligations of court and prosecutors to make enquires of the victim’s awareness of the plea arrangements.
Under the present provision of a plea inquiry under the Criminal Code, section 606 seeks to ensure that the accused is fully informed of the terms and potential consequences and is voluntary. The Act seeks to add a provision obligating the Court to inquire that reasonable steps were taken to inform the victim(s) of the plea for certain offences involving “personal injury” as defined under section 752. This amendment also places an obligation upon the prosecutor to take reasonable steps to inform the victim of the plea afterwards.
The paramountcy of public protection in sentencing under section 718.
The Act will amend section 718 of the Criminal Code to prioritize the protection of society over the present intentions where the “fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives…”.
The Act will amend the Criminal Code to read “…fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives…”.
Such an amendment will obviously place a greater emphasis on incarceration and the removal of offenders from society in order to obtain this priority of protection. This prioritization is also supported by the amendment of section 718(e) to amend that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.” to read that “(e) all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
An expansion of items properly included in victim impact statements.
Section 722 will be amended to provide greater latitude for the victim to include harm done. More significantly, the victim will have the right to read the statement directly in Court to the accused and may even present photographs depicting them before and after the incident. All of this must be taken into account by the Court in assessing an appropriate sentence.
The Court is also obligated to hear and consider any statements prepared on behalf of a community at large to describe the harm the crime has had upon the community.
The victim’s right to probation orders
The Act will require disclosure of any probation orders upon request of the victim.
A termination of extending payment of victim fine surcharges and mandatory considerations of restitution orders.
Recently, there has been some controversial decisions of judges who were upset with the current implementation of mandatory victim fine surcharges. That rebellion reared its head in various ways but one was by imposing a victim fine surcharge but with a very long time period to pay it. The new Act requires the victim one surcharge be paid in accordance with a schedule set by the the lieutenant in council, or within a reasonable time otherwise.
The Court will also be obligated to ensure that the victim may make representations on restitution orders to make against the accused for harm done. These orders would carry the same weight and enforcement mechanisms as a civil judgment.
An ability to pay or financial means does not prevent the Court from making any of these orders under the Act.
A greater latitude in definition of who may appear to make representations on an offenders’ release.
Consistent with the expansion of the definition of victim, many more individuals may now appear to make representations for individuals seeking release under the Corrections and Conditional Release Act. The victims, or designates, would also be entitled to a great deal of information relating to the offenders plans and date of release, a photograph of them, work plans, etc.
Spouses made compellable witnesses.
Under the Canada Evidence Act at present, a spouse is not a compellable witness for the prosecution. Under the Act, this would change and no matter what the offence, a spouse would be a compellable witness for the prosecution. This would force a husband or wife to testify against or face charges of contempt or other sanctions.
The inevitable controversy to come.
As with many of the recent criminal justice amendments made by the present government, there is bound to be considerable controversy with this proposed legislation. The drastic changes, if passed, will have a profound impact upon the criminal justice system in the manner witnesses and alleged victims are treated. It’s expected by this author that constitutional challenges will be brought in various areas including aspects of making full answer and defence, the right to a fair trial, the right to disclosure, cruel and unusual punishment, and many others.
It will be interesting to see how the public perceives these changes under a present climate where victims’ rights seem paramount to accused individuals. I hope that in the course of these debates that the typical language of “criminals” vs. “victims” does not rear its ugly head. I hope that in the course of public debate, we do not lose sight of the importance of the presumption of innocence and that not all persons charged are criminals. Perhaps not as a matter of fact, but I always thought in law that a “victim” was someone we called a someone once an offence was proven beyond a reasonable doubt..it seems that has changed and I fear to the peril of a free and fair society.
Sean Robichaud, Barrister & Solicitor
You can reach Sean Robichaud at (416) 220-0413 to discuss these or other issues as it relates to criminal law.