Part II - Bill C-489: The first wave of Victims' Rights Legislation

As I wrote on November 7th I appeared at Standing Committee on Justice and Human Rights to speak about Bill C-489

A complete transcript of my submissions can now be found online.

Bill C-489 (a private members bill introduced by Mark Warawa) seeks to amend section 161 of the Criminal Code to allow sentencing judges to impose a geographical boundaries between the victim of a sexual offence and the offender.  The bill also would make it mandatory for a judge to impose a non-communication order between victims and offenders as part of a probation order.

I expressed three main areas of concern to the committee - as detailed below these concerns were taken into consideration and were all addressed through amendments. 

Distance of Geographical Restrictions

My first concern related to the mandatory (and some what arbitrary) distance of 2 kilometer for any geographical limit between the offender and victim.

I submitted that since the Criminal Code allows a judge the discretion to impose the condition (or not) and discretion to craft exceptions to the geographical restriction, discretion should also be given with respect to the actual distance of the geographical restriction. 

Some cases may call for a shorter distance than 2 kilometers and some cases may call for a greater distance.

Judges know the facts of the case, they know the circumstances of the offender, and  under our sentencing laws they must consider the input of the victim.  Sentencing judges are in the best position to impose the appropriate geographical restriction, whether that be 500 meters, one kilometer, two kilometers, or more.

A blanket 2 kilometer boundary may be too large in small towns due to the size of the town.  There, of course, exists the problem in large cities too, that a 2 kilometer radius may be too large, covering hundreds of thousands of people and many locations. This is especially true when one takes into account that many programs located in urban areas that are designed to assist in the rehabilitation of offenders, which is in everyone's interest, are often clustered together.

Any geographical condition should not be decided in a vacuum, but in a courtroom.

Non-Communication Orders

My second concern was with the lack of clarity with respect to non-communication orders that C-489 would add to the list of mandatory probation conditions.

Bill C-489 would permit an exception to the mandatory non-communication order if there is consent of the victim.  The bill was not however clear as to when and how that consent could be provided. 

I submitted that the proper interpretation is that consent could be provided or revoked at any time within the duration of the probation order.  This interpretation seems to make sense since it provides flexibility and, ultimately, puts control in the victim's hands.  It would also eliminate the absurd scenario of a victim providing consent at the time of sentencing but not being able to revoke that consent at a later date.

Written Reasons for Not Imposing Conditions

My final major issue with the bill was that it would require courts to give written reasons for not imposing certain conditions. 

Court are always required to give reasons for decisions - written or oral.  In this case there is no reason why oral reasons would not be sufficient. There's no principled reason why written reasons should be required.

Oral reasons are given in very serious decisions about guilt or innocence. Oral reasons are sufficient when sentencing someone to lengthy penitentiary sentences. Oral reasons are a matter of record.

Written reasons do not add any value to the process - they would however create delays and waste precious court time.

Amendments to the Bill

Following my appearance amendments were proposed - and agreed to - that addressemy concerns.

Importantly the bill was amended to provide courts flexibility with respect to the distance of any geographical restriction:

In clause 1, the first change in this amendment would add the words “or any other distance specified” of the victim “or of any other place specified” immediately after the words “two kilometers” in proposed paragraph 161(1)(a.1) of clause 1.

This amendment would still require courts to consider the geographical restriction of two kilometers, but would allow the courts to impose greater or lesser geographic restriction where it is reasonable to do so. For instance, it may be inappropriate to impose a two kilometer prohibition where an offender lives in a small town. Such a restriction would effectively prohibit offenders in such cases from returning to their homes. In other cases a greater geographic restriction than two kilometers may be appropriate. Now this somewhat addresses the concern of one of our witnesses, who I think was on track.

The bill was also amended to make it clear that any exceptions to the probation non-communications orders could be revokable - in essence it was clarified that consent or the revocation of consent could be given or revoked at any time during the probation order

The bill was further amended to remove the requirement of written reasons for not imposing conditions:

The second part of the amendment would amend subsection 2.1 of clause 2 to require the court to state on the record, instead of providing written reasons, its decision for not imposing a condition prohibiting an offender from communicating with a victim. Written reasons in a court are not provided in many cases, and to require written reasons would result in unintended and unnecessary administrative delays and cost. Moreover, the motion's proposed approach is consistent with other Criminal Code provisions, such as where discretionary conditions are currently imposed under subsection 83.3(1), recognizance; subsection 110(3), weapons prohibitions; and subsection 719(3.2), credit for time served.

It is refreshing when concerns of witnesses who give evidence at committee are not only listened to but result in corrective amendments. 

Quite frankly, this happens far to infrequently and has resulted in legislation that is unfair, unprincipled, and in some cases does not meet constitutional standards.

It remains to be seen if the government has finally realized the benefits of evidence based policy, however, given the Conservative legislative history I don't hold out much hope that my most recent experience is indicative of a larger change in attitude.