What is a victim?
The Victims Bill of Rights defines who is a victim at the outset. Only those people who fall within the definition are considered victims. The Bill of Rights limits the application of the rights to those who have suffered physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of an offence. This means that a person who may have been victim of a crime, regardless of whether it is proven, is a victim for the purposes of the Bill of Rights. People who make false or spurious allegations against another individual are given rights under this legislation just as those who are truly wronged by a criminal act.
The Bill of Rights also extends the definition of victim in circumstances where a victim is dead or incapable of asserting their rights to spouses, common law partners, family members, dependents, and parents or legal guardians of victims.
No one is entitled to be called a victim if they themselves have been charged with the crime. For example, drug users who traffic in narcotics to support a drug addiction are not victims of crime, even though the criminal drug trade may be responsible for their decision to traffic.
The Good Parts of This Bill
There are plenty of good aspects to the Victims Bill of Rights. For example, victims of crime have the right to information about the role of victims in the criminal justice system, the services available to victims, and to file a formal complaint when their rights under the Bill of Rights are breached.
The victim is also entitled to information about the status of the investigation, the status of criminal charges, and the status of the proceeding as well as where and when it will be taking place.
Victims of crime are also entitled to know that the appropriate authorities will protect their security, and to be protected from intimidation or retaliation. They are entitled to present a victim impact statement, outlining how they have been affected by a crime.
These are noble goals, and important to the truth-seeking function of a criminal proceeding is knowing that victims of crime will be entitled to participate in the process without fear of retribution or retaliation. It is a shame that people charged with a crime are sometimes not afforded the same protections, particularly where they are charged with serious or high-profile crimes. However, not all aspects of the bill function to achieve these noble goals, or do so at a cost to fairness of the trial process.
One of the biggest changes we see following the Victims Bill of Rights is a change that allows victims anonymity. This is problematic. In the United States, those charged with an offence have the right to confront their accuser. In Canada, the rule is more relaxed and is generally said to be the right to know the case against you, to be present in court, and to make answer and defence. But that doesn’t mean that people do not or should not have the right to know who is making allegations and who the witnesses are.
The anonymity of witnesses who are victims can be achieved under the Bill of Rights in various ways. Section 12 allows the victim to have their identity protected. Section 13 allows the victim to rely on testimonial aids. Until the passing of this Bill, testimonial aids were typically only used for child witnesses or vulnerable witnesses. They were not the status quo, and certainly not a right that any victim automatically had.
Testimonial aids allow victims to testify by CCTV, from behind witness screens. They allow the victim to have a support person present during testimony, and can prevent self-represented accused persons from cross-examining them. Instead, cross-examination must be achieved by a court-appointed lawyer. This necessarily impairs the right to make full answer and defence, by preventing self-represented people from advancing, in some circumstances, their theory of the case. CCTV and witness screens make it more difficult to assess credibility by removing the ability to see and hear witnesses in person and get a “feel” through body language and non-verbal cues about whether someone is telling the truth.
Conveying Their Views
One of the most wonderful aspects of our criminal justice system is Crown discretion. In British Columbia, the prosecution determines whether a charge should be approved and pursued through courts based on whether there is a substantial likelihood of conviction. The Crown is supposed to make these decisions independent of the views of police, victims of crime, or society generally. It costs money to pursue trials that have no likelihood of success. It clogs up the courts with unnecessary matters. Crown discretion also allows the Crown to make deals to resolve files in a manner that is appropriate, having regard to a variety of factors.
Under the new law, the Crown’s exercise of discretion will have to consider the views of victims. This means that prosecutors will have to consider whether a stay of proceedings, a particular deal, or approving charges at all is okay with a victim of a crime. This can have significant negative impacts on the justice system, by clogging courts with meritless prosecutions. It will prevent defence lawyers and Crown from working together to achieve reasonable solutions to criminal files. And it will simply take more time, meaning that more prosecutors will need to be hired as their individual workloads now must increase. While victims should be entitled to express their views, there should not be an obligation to consider those views when the viewpoint of a victim is inconsistent with the just, fair, and expedient functioning of the justice system.
The Criminal Code has also been amended to require judges to ask, in all cases of indictable offences, whether the victim has been informed and their views considered. The Court is also required to ask if there is a victim impact statement, and reasonable steps to obtain one taken, anytime a finding of guilt has been made.
Although this Bill is supposed to function in a way that does not compromise these aspects of prosecutorial discretion and the administration of justice, it is difficult to say how the provisions in the Bill can be meaningfully applied without having any effect on them. The reality is that when you add another layer to the process, things will necessarily have to change and may not change in a positive way. The effects of the Victims Bill of Rights may not be something that is readily discernible until it is too late, or until policies have been adopted that have compromised fairness for many individuals.
The most frightening aspect of this Bill, however, is that it eliminates spousal privilege or spousal immunity from testifying. Until this Bill passed, spouses of people charged with criminal offences could not be compelled to testify against them. There were a few exceptions to this rule that applied in the case of spousal victims, children under the age of 14, and when called to testify by the defence spouse. But those no longer apply. Now it’s open season on spouses of those charged with an offence.
In many trials, this is significant. Consider this: John and Debra are married. They go for dinner together. They share a bottle of wine. John gets behind the wheel, and is caught driving drunk at a roadblock. He blows over the legal limit, but due to a procedural error the Crown cannot rely on evidentiary shortcuts to introduce the blood alcohol readings. No one was injured and he was stopped before anything bad happened.
In that scenario, Debra can be interviewed by the Crown, and called as a witness to testify against John. She can be compelled to come to court by subpoena and under threat of arrest. She can be asked under oath about how much John had to drink and for her opinion on his sobriety. She is required to answer truthfully, or she could face perjury charges. She can no longer decline to answer or refuse to attend court on the basis that she and John are married. John may then be convicted of drunk driving, based on her testimony.
Maybe you’re not sympathetic to John’s situation because he’s charged with drunk driving. Does your opinion change if I tell you that Debra has no license and relies on John to drive her? If she cannot, due to a seizure disorder, drive a vehicle? Her testimony has convicted her husband, whose license is now gone for one year. He was her only means of transportation. How is that fair?
What if John isn’t charged with drunk driving, but with theft? What if John and Debra cannot afford groceries and she witnesses him stealing groceries? Or he comes home and discloses to her that he stole them? She can then be compelled to testify against him even though he was only stealing to provide for her.
Maybe the only solution is to marry a lawyer and keep them on retainer.
But really, what is the connection between the rights of victims and the compellability of spouses as witnesses? There were already exceptions for spouses who were victims of crime to be allowed to testify against their partner. There appears to be no rational connection between these changes and the protection of the rights of victims. This change seems to function in a way that undermines one of the most important tenets of our criminal justice system, and which seeks only to allow the police a better opportunity to build a case against an accused person. It facilitates convictions, not justice. And I do not agree with it.