Canada: Canadian Victims Bill Of Rights

Last Updated: April 30 2014
Article by Gerald D. Chipeur QC

Introduction

On April 3, 2014, Prime Minister Stephen Harper announced legislation to give victims of crime a more effective voice in the criminal justice system.

The Victims Bill of Rights Act is a significant piece of legislation that seeks to create clear statutory rights at the federal level for victims of crime for the first time in Canada's history.  The legislation would establish statutory rights to information, protection, participation and restitution, and ensure a complaint process is in place for breaches of these rights.

Quasi-Constitutional Document

The Victims Bill of Rights Act will join the Canadian Bill of Rights, the Canadian Human Rights Act, the Official Languages Act, the Access to Information Act and the Privacy Act as a quasi-constitutional statute.  The rights set forth in the Victims Bill of Rights Act "will be balanced with these other quasi-constitutional rights."

Definition of Victim

The Victims Bill of Rights Act proposes to define a victim of crime as any individual who has suffered physical or emotional harm, property damage, or economic loss as a result of an offence under the Criminal Code and certain other related criminal laws.  The proposed rights would be limited to victims in Canada, and victims who are Canadian citizens or permanent residents of Canada.

Remedies

The remedies that will be available to a victim remain largely undefined.  This will be the most important part of the new legislation when it is tabled.  The current plan appears to include a process for complaints similar to that set forth in freedom of information legislation. Victims will be required to file complaints with appropriate federal departments or agencies.  Furthermore, provincial departments and agencies will be encouraged to provide similar remedies.  Federal funding will be made available to assist provincial initiatives.

In addition, the restitution process under the Criminal Code will be enhnaced.

The unanswered question at present is whether the funding available to victims will have any features related to the determination of fault.  In the case of the Pickton murders, and in others like it, the government has made a payment where the departments and agencies involved may have been at fault.

In Pickton, the City of Vancouver, the Government of British Columbia, and the Government of Canada agreed to pay $50,000.00, plus legal costs, to each child whose mother's DNA was found on serial killer Robert Pickton's farm. At least ninety-eight children of mothers linked to the Pickton murders are eligible for the compensation

The settlement was in response to the key recommendation of the Missing Women Commission of Inquiry in relation to the lawsuit initiated by several families of the victims over the alleged mishandling of the RCMP investigation of the Pickton murders.

According to the press release from the office of the Prime Minister, the funding to be provided under the Victims Bill of Right Act to provincial and territorial governments is intended to encourage:

  1. enhancement of current complain bodies for victims of crime;
  2. establishment of complaint bodies for victims of crime;
  3. consistency in the complaints mechanisms available to victims of crime across the country;
  4. maintenance of successful existing programs for victims of crime.

It is clear from the overview ("Overview") issued by the Office of the Prime Minister that the Victims Bills of Rights is intended to do more than simply compensate victims with a payment of money.  The legislation will require federal departments and agencies to have "internal complaint mechanisms" to "review complaints" and "make recommendations to correct any infringement."

Ombudsman, FOIP and WCB

It appears that the Victims Bill of Rights Act will have the characteristics of three different federal initiatives:

  1. Ombudsman Review;
  2. Freedom of Information Processes;
  3. No-Fault Workers Compensation.

There has been a Federal Ombudsman for Victims of Crime since March 2007.  There has been freedom of information legislation at the Federal level since 1987.  There has been provision for restitution in the Criminal Code since 1995.  The Victims Bill of Rights Act will bring all of these initiatives together under one statement of rights.  However, the fulfillment of the promise of the Victims Bill of Rights will continue to be found in a multitude of Federal laws and programs

Rights

It is not yet clear whether victims of crime will ever be entitled to compensation as of right.  But it is clear that the federal government does not intend to set up a commission like those in place to enforce human rights laws across Canada.  Instead, it appears that the Victims Bill of Rights Act will be enforced in much the same way as are freedom of information statutes.

Another open question is the issue of fault.  Will the Victims Bill of Rights Acts provide compensation based on the loss suffered by the victim or will it be necessary to show that a mistake was made by government before money will flow?

The Overview leaves some ambiguity on this question because of the statement that "recommendations" will be made by federal government departments and agencies when "rights" under the Victims Bill of Rights Act "have been breached."  It is said that "recommendations" will be made "to correct any infringement."  Such correction could conceivably include compensation.

The Victims Bill of Rights Act will establish four kinds of rights, including:

  1. the Right to Information;
  2. the Right to Protection;
  3. the Right to Participation;
  4. the Right to Restitution;

The right to information will include the right to the following case-specific information:

  • status and outcome of investigations;
  • scheduling, progress and final outcome of a case;
  • consideration of conditional release and timing of a conditional release;
  • information regarding any decisions surrounding a determination that an accused is unfit to start trial.

All of these rights are a significant change from the status quo. At the present time victims can be excluded from the preliminary processes and trial simply through the act of silence.

The right to protection will be in addition to the general expectation of public safety services and will include the right to:

  • have the victims security and privacy considered by criminal justice personnel;
  • be protected from intimidation and retaliation;
  • request testimonial aids when testifying in court;
  • request that their identity be protected from public disclosure.

These rights are not in any measureable way different than the status quo. However, some of the consequential amendments to the Criminal Code and the Canada Evidence Act would make dramatic changes. For example, the common law rule against a spouse testifying against his or her spouse will dramatically improve the safety of spouses trapped in abusive circumstances.

The right participation will give victims the right to convey their views and to present a victim impact statement. There are two initiatives under this heading with the potential for dramatic impact on the trial and sentencing process:

  • the right of victims to convey their views about decisions to be made by criminal justice professionals at various stages of the justice system;
  • the acknowledgement of harm done to victims and the community will be added to sentencing objectives under the Criminal Code.

The right to restitution under the Victims Bill of Rights Act is not so much a right to compensation as it is a right to request compensation. The significant changes regarding restitution orders will include:

  • the requirement that the court consider a restitution order for all offences for which there are easy–to-calculate financial losses and that the court allow victims to describe the losses at sentencing;
  • the removal of consideration of the offender's ability to pay from the factors considered when an order of restitution is made.

In addition, the federal government will make the process of seeking restitution more stream lined and user friendly.

Conclusion

The new Canadian Victims Bill of Rights Act will have a profound impact on society and on the way in which government departments and agencies carry on business.

The Victims Bill of Rights Act will be quasi-constitutional and will cover every aspect of the federal government.  Furthermore, there will be financial incentives for provincial governments to mirror the federal initiative.

In conclusion, it is likely that we will find in place a Victims Bill of Rights that includes aspects of:

  1. human rights investigations;
  2. freedom of information access and disclosure processes;
  3. no-fault workers compensation plans; and,
  4. ombudsman reviews.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Gerald D. Chipeur QC
 
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