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Will New Harper Bill Truly Give 'Voice to Victims'?

Jury's still out, but oddly, it could compel spouses to testify against each other.

Justin Ling 3 Apr 2014TheTyee.ca

Justin Ling is an Ottawa-based freelance journalist.

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Led by Justice Minister Peter MacKay, new federal victims' legislation affords rights; can force spouses to testify against each other.

Ottawa has introduced a federal bill of rights for victims of crime, and it is concise, limited and lacking hidden provisions, as some lawyers feared.

The bill is one of the longest outstanding promises of the Harper government, and of the Reform Party before it. Its introduction has been pending for nearly a year, with Justice Minister Peter MacKay criss-crossing the country and holding consultations with victims groups, lawyers and other stakeholders on where the bill should begin and end.

In a climate where justice issues have become increasingly fractious -- where a cyberbullying bill stiffens penalties for cable theft, and where legislation receive nearly-unanimous condemnation from the legal community but gets passed anyway -- the Victims Bill of Rights Act is a marked change.

From the outset, the idea of enumerating rights for victims brought up a controversial choice for the government -- should the initiative merely improve government services for those who have faced loss or violence at the hands of another, or should it carve out a special role for victims in the process?

Documents from the Department of Justice under the Access to Information Act show that the government was considering the latter. The department considered giving victims the right to have their lawyers participate in legal proceedings, and the ability to influence and appeal sentencing and prosecutions -- a move that would have clawed away substantial judicial discretion from judges, putting it into the hands of those with an emotional investment in the case.

Instead of taking that route, Ottawa opted for a much simpler solution -- to codify a series of basic privileges for victims as "rights." If the victims feel like those rights are not respected through the process, they have the opportunity to complain to the department.

More temperate bill than expected

Some of the rights, such as the right of victims to read an impact statement at sentencing or parole hearings, already exist and are simply being reinforced. Other provisions in the bill, such as a victim's right to be protected by a publication ban, expand the rights currently afforded to witnesses in criminal proceedings.

One aspect of the bill that promises to raise eyebrows is the decision to axe the ancient "spousal exception provision" from the Canada Evidence Act. The rule states that a married person cannot be compelled to testify against their spouse (common law partners, and married couples who are separated, are not protected by this provision).

The concept dates back to the early traditions in English law, when married couples were considered a single person in the eyes of the law. The provision was controversially upheld in a 2007 case, where a wife's testimony against her husband -- accused of murdering two women -- was thrown out. It's not unclear what that provision has to do with victims.

One principle in the bill that has always received slack is the idea that victims should have the right to be kept up-to-date on the status of the offender. The bill of rights' most controversial element in that regard is a provision allowing the victim, if they wish, to obtain a picture of the offender at the time of their release. There have long been fears that such provisions could lead to vigilantism. The government has stated that it can be re-victimizing for a victim to see the person who assaulted them at the local grocery store, for example.

Bill furthers Tory messaging: lawyer

One of the main proponents behind the concept of a victims' bill of rights is Sue O'Sullivan, of the Office of the Federal Ombudsperson for Victims of Crime. She has strongly advocated for an expansive and forceful iteration of the bill that included a vastly expanded role for victims -- or their lawyers -- in plea bargains, sentencing and appeals.

Minister MacKay repeatedly indicated that he was looking to follow O'Sullivan's recommendations. One of his scripted questions for the roundtable consultations was: "Should victims of crime have the right to have legal counsel appear on their behalf to assert their rights in criminal proceedings?"

MacKay added to that skepticism in refusing to comment on the bill. His only public statements occurred during the consultations, where he made repeated commitments to advance the rights of victims. In one Toronto consultation, he vowed that the bill would ensure that victims are "front and centre in some of the decisions that are taken."

Those in the legal community expressed grave concern that doing so would go against the fundamental structure of Canada's legal system, undercutting the dispassionate independence of the judiciary.

"That would be tantamount to reinventing the entire justice system," said Ottawa lawyer Leo Russomanno. He said the bill that was tabled today, in principle, is a comparatively good piece of legislation. It formalizes existing practices, and maintains that helping victims should not delay or prolong the administration of justice.

Russomanno did note, with a bit of cynicism, that stumping for victims' rights is "in furtherance of the messaging that [the Conservatives] have."

'Who can be against helping victims?': NDP

Before the bill was presented, NDP Justice Critic Françoise Boivin noted the fraught legal landscape laid out before the bill, wondering whether Canada's centuries-old model of law can or should be overhauled by the government of the day. "Those are fascinating legal questions. I wish I could just remove my MP hat and go sit and crunch the books," she said.

But Boivin did say that the bill of rights is not, in and of itself, a bad idea. "Who can be against helping victims?" she said, underlining that it still has to be compliant with the Charter.

Boivin added that she'll always be suspicious of the government's intentions, and worries the bill might be little more than a way to buy votes. "I don't want to see victims used as props."

Minister MacKay and Prime Minister Stephen Harper announced the bill, C-23, at a town hall-style event in Mississauga, Ontario, alongside victims rights advocates and those who say they were, under the current system, poorly served through the justice system.

"Above all else," Harper told the crowd. "The victims' bill of rights is supposed to give a voice to victims."  [Tyee]

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