The federal government has introduced provisions to give victims unprecedented access and standing in the Canadian justice system — and in doing so, Ottawa rejected a slew of more radical proposals that could have seen victims leveraged in every step of the administration of justice.
But perhaps most significantly, Bill C-32 also introduces changes to the Canada Evidence Act that would allow the courts to force spouses to testify against each other. If passed it will mark the end of a centuries-old English legal tradition — the spousal exemption. In 2007, the Supreme Court of Canada upheld the exemption in R. v. Couture, where a wife’s testimony (made prior to her reconciliation with her husband) was thrown out as being inadmissible.
Now under C-32, “no person is incompetent, or uncompellable, to testify for the prosecution by reason only that they are married to the accused.”
Even so, and though no longer protected from subpoena, spouses will still have a privilege under the Act to refuse to disclose any communication made in the confines of the marriage, if they chose to do so.
Howard Krongold, an Ottawa lawyer at Webber Goldstein Abergel, says eliminating the provision “is a pretty fair compromise.” The provision, he says, is “a bit of a relic”, adding that “the trend in other jurisdictions has been to get rid of it.”
The long road to a victims’ bill of rights
The origin of the idea of a federal victims bill of rights is over a decade old.
The Reform Party was the first, in 1996, to champion the idea of a charter that would lay out how the government deals with victims. The Liberal government of the day nominally supported it, but never followed through on the plan. The idea was revived in 2006, when Harper featured it prominently in his election platform.
The government then moved to appoint ex-cop Sue O’Sullivan as the Federal Ombudsman for the Victims of Crime. While her office has engaged in consultations and information sessions with victims, little movement was made on actually creating the bill until Justice Minister Peter MacKay took the helm last summer. In last October’s Throne Speech, the Prime Minister promised to table a bill "to restore victims to their rightful place at the heart of our justice system.”
Finally, Bill C-32 was tabled after nearly a year of consultations, reports, and signals in the fog over what would be included.
In the end, the bill took its cues from the Manitoban government in providing administrative — rather than legal — remedies for victims and their families.
The meat of Bill C-32 involves codifying long-used practices — such as keeping victims informed of the status of prosecution, ensuring protection and security is available for those victims, and allowing victims to participate in sentencing and parole hearings — and turning them into ‘rights.’
It extends a number of rights to victims — or their family members, spouse, dependent or guardian, mandated to act on their behalf — to demand to be informed about the resources available to them in the criminal justice system. They can also request information on the status of an investigation and prosecution, make an victim impact statement, apply for a publication ban in cases involving young victims, obtain information about the convicted parties, and gain restitution from the convicted.
Many of those rights are already established practices. Now, however, victims can appeal to the Justice Department if they feel their rights have not been respected. The legislation, though, is emphatic — victims rights must not slow down the wheels of justice, nor can a failure to live up to them impact the administration of justice in any way.
Krongold says the bill “has the appearance of conveying a lot of rights.” In practice, though, it might be more of a guideline than a rulebook.
Some of those guidelines have drawn skeptical remarks— namely, a new right for witnesses to remain anonymous, or employ a pseudonym during prosecution. The bill, however, dictates that the provision can only be used if a judge feels it is necessary, upon application from the witness, and that the order is “in the interest of the proper administration of justice.”
As for the sections of the bill that actually deal with victims’ issues, it’s hardly revolutionary. The problem, however — and possibly the reason it has taken so long to introduce — is in balancing the interests of victims with the rights of the accused. All the provinces have their own versions of a victims’ bill of rights, but it’s a patchwork.
The Ontario Superior Court decided in 1999 that it was a bill of rights in name only. "The act is a statement of principle and social policy, beguilingly clothed in the language of legislation," wrote Justice Gerald Day in Vanscoy v. Ontario. "It does not establish any statutory rights for the victims of crime."
The results were quite different in Manitoba, which created the Victim Rights Support Service, which focuses on administrative measures, rather than creating legal rights. If a victim feels that they are not receiving adequate information, they can complain to the director of the service.
Manitoba Justice Minister Andrew Swan told National in the run-up to the bill’s tabling that there is benefit in Ottawa creating a national program, arm-in-arm with the provinces. "We don't want this to be an exercise where the federal government lays down some regulations, say they've done their job and then wash their hands of it." He says if the government doesn't create a channel to make the bill enforceable — like Manitoba's support services office — then it is an empty gesture.
Bill C-32 mimics Manitoba’s in many ways, but it directs the recourse for complaints through the Justice Department. It’s unclear what the mechanizations of that will look like.
Leo Russomanno, also a defense lawyer with Webber Goldstein Abergel, says there's nothing wrong with giving victims a role in the system, provided prosecutors maintain their “constitutional independence.” And for now, the bill does little more than formalize existing practices, he says. “There’s nothing wrong with informing victims. It happens informally, now.”
Still, he questions how Ottawa expects the department to field complaints. If a judge, for example, fails to allow a victim impact statement: “how could they, in any way, affect what the judge decides?” he says. And if they go to the department? “It sounds like the equivalent of registering a complaint with police. It’s like: ‘alright, buddy, thanks.’”
But it could have the practical effect of giving a backbone to existing legislation in the provinces.
Most of O'Sullivan's 29 recommendations are relatively altruistic, information-based measures that have received broad support – such as giving victims timely updates on the status of the investigation and prosecution. Most have made it into the bill.
But O'Sullivan's report also contains ideas that represent a departure from Canada's traditional system. One recommendation encourages the creation of a process through which victims can appeal the Crown's decision not to prosecute.
"The right to such a review is consistent with the recognition that victims are not mere observers in the criminal justice process, but real participants with both interests to protect and rights to enforce," reads the report. It also suggests that victims should have a role in plea bargain negotiations, "without providing a right to veto such agreements."
Bill C-32 does include some tough-on-crime provisions — adding the right to restitution from the convicted, by way of payment of the federal victims surcharge; and a requirement by the court to inform the victim of the offender’s release, conditions of parole, and even a picture of them upon exit from prison.
But there was ample evidence that Ottawa was considering a much harder line. Documents prepared for the minister in preparation of those consultations, obtained through the Access to Information Act, shows the government very much looking to formalize the victim's chance to speak.
"Consultation participants ... want the ability to participate in the criminal justice system at key points (like sentencing)," reads the background document. The rest of the paragraph was redacted under sections of the freedom of information act that protect the government from disclosing documents that could be "injurious" to federal-provincial relations or negotiations.
Those consultations were part of a marathon effort to bring in perspective from victims in every province and territory. They also served as a promotional tool for the upcoming bill.
"Our government will ensure that this bill becomes a tool for law enforcement, not a burden," MacKay told the room full of victims advocates at a consultation in Toronto in September.
The new provisions could mean more work for Crown attorney, something Swan hopes won’t become a problem: "We work our Crown attorneys very hard, and we don't like anything that would take their eyes off the ball.”