Bill C32 - Victims Bill of Rights

Today the Conservative government unveiled their much publicized Victims Bill of Rights - Bill C-32.

In the year long lead up to the release of this legislation the Conservatives lost no opportunity to make clear that victims required additional considerations in the criminal justice process.

In October 2013 the Conservatives announced:

Our Government believes that the justice system exists to protect law-abiding citizens and our communities. For too long, the voices of victims have been silenced, while the system coddled criminals. Our Government has worked to re-establish Canada as a country where those who break the law are punished for their actions; where penalties match the severity of crimes committed; where the rights of victims come before the rights of criminals.

Our Government will introduce a Victims Bill of Rights to restore victims to their rightful place at the heart of our justice system.

The Conservatives contended that "For too long, the voices of victims have been silenced, while the system coddled criminals." 

As a starting point - this is simply untrue. 

There are many sections in the Criminal Code that apply to victims (or more rightly - alleged victims). 

Complainants can, in the appropriate case, testify via video link or behind a screen so as not to face the accused.  Complainants can seek the assistance of support persons while providing testimony.  In some cases complainants need not testify and their prior statements can be read into evidence.  In all cases victims have access to a robust victims service office.

Additionally, after a conviction and when a court determines the appropriate sentence, victims have the right to provide a victim impact statement - they are not silenced as the Conservatives claim.  Courts must consider victim input.  Section 722 of the Criminal Code directs:

For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. 

Given the measures above that are currently in place and the Conservative rhetoric I suspect bill C-32 bill may not meet the loft expectations of victims rights groups. 

Bill C-32 seems to be largely window dressing - although as I will point out there are some areas of concern.  At most, many of the provisions in C-32 represent a modest expansion of the current measures.

Bill C-32 makes reasonable changes to the notification of victims at various stages in the criminal justice process and tightens the rules about the publication of a victim's personal information.  To a large extent many of these common sense measures already exist.

These small changes to the law are completely uncontroversial and reasonable (at least on initial reading) and I would expect will receive broad support.

In essence C-32 creates a number of victim's 'rights'.  As the legislation makes clear - these rights are completely unenforceable and a a breach of the 'rights' comes without any remedy.

C-32 makes it clear that victims are not to be considered a party or granted standing in any proceeding.

There are some serious area of concerns that do warrant further consideration.

Mechanical Considerations of Restitution

Bill C-32 amends section 739 of the Criminal Code to remove any consideration of an offenders ability to pay a restitution.

This runs the risk of unconstitutionality.  As the Ontario Court of Appeal held in R. v. Castro:

A restitution order should not be made as a mechanical afterthought to a sentence of imprisonment: R. v. Siemens, 1999 CanLII 18651 (MB CA), [1999] M.J. No. 285, 136 C.C.C. (3d) 353 (C.A.), at para. 10. Care must be taken not to simply add a restitution order to a sentence of imprisonment which, in itself, is a fit punishment for the crime, as this can amount to excessive punishment and offend the totality principle.

To summarize, a restitution order is simply part of the determination of an overall fit sentence, and general sentencing principles apply. While consideration of the offender's ability to pay and the impact of a restitution order on an offender's rehabilitation are factors to be considered, the weight to be given to these factors will vary depending on the nature of the offence and the circumstances of the offender.

The proposition that an offender's ability to pay is an important and proper consideration is reflected in multiple Court of Appeal decisions, take for example R. v. Chambers:

The jurisprudence of this court makes it clear that a person's ability to pay a restitution order is a relevant factor that must be taken into consideration.  See, for example, R. v. Taylor 2003 CanLII 16380 (ON CA), (2003), 180 C.C.C. (3d) 495.  It was an error for the sentencing judge to fail to consider the appellant's financial circumstances and ability to pay.

In this case, that factor alone militates against an order for restitution because the appellant, despite all her hard work and efforts, simply has no ability to pay such an order.

Bill C-32 operates in the precise fashion the Court of Appeal cautions against - mechanically. 

A mechanical application of the law leaves no room for historic principles of sentencing - like totality - that ensure fairness.

In dispensing with these time tested principles this section of C-32 may very well offend the Charter.

Spousal Compellability and Incompetence

Bill C-32 also amends sections of the Canada Evidence Act dealing with spousal incompetence compellability. 

Historically the Crown could not compel (force) an accused's spouse to testify.  This is no longer the case.  Under bill C-32 no person is incompetent or uncompellable to testify for the prosecution because of marriage.

The new legislation does not, however, remove spousal privilege - found in section 4(3) of the Canada Evidence Act. 

A spouse still cannot be forced to testify about spousal communications.  They can however be forced to testify about all other manner of issues - including issues that may impact on the sanctity of the spousal relationship.

It is unclear what this has to do with victims rights.

It is interesting to pause to note that: It is also unclear why the government did not amend the wording of section 4(3) of the Canada Evidence Act.  This section speaks of 'husband' and 'wife' - I would think some more modern terminology could have been used.

Issues of spousal compellability are historical and complex. 

It may be time to revisit these ancient common law rules.  Most recently the Supreme Court considered - and questioned - the spousal competence rules in the case of R. v. Couture:

There is no question that the spousal incompetency rule and its underlying rationales have been the subject of significant criticism.  The various bases for this criticism has been discussed at some length in Salituro and again in Hawkins and need not be repeated here.  However, while there seems to be a growing consensus that the rules should be changed, it is less clear how they should be changed.  On the one hand, there would be sound reasons for giving the spouse the choice whether to testify or not. As Iacobucci J. noted in Salituro (at p. 673):

The grounds which have been used in support of the rule are inconsistent with respect for the freedom of all individuals, which has become a central tenet of the legal and moral fabric of this country particularly since the adoption of the Charter. . . .The common law rule making a spouse an incompetent witness involves a conflict between the freedom of the individual to choose whether or not to testify and the interests of society in preserving the marriage bond.

On the other hand, there are sound reasons for not giving the spouse the choice whether to testify or not. As aptly noted by McLachlin J.A., in McGinty, giving the spouse a choice  “is more likely to be productive of family discord than to prevent it.  It leaves the victim-spouse open to further threats and violence aimed at preventing him or her from testifying, and leaves him or her open to recriminations if he or she chooses to testify” (p. 40).  Based on this rationale, the options for reform appear to be between leaving the rule as it is, or abolishing it altogether making spouses competent and compellable by both the Crown and defence in all cases.

However, it is far from clear that the question is an “all or nothing” proposition. 

As the Supreme Court makes clear that although the issue of spousal competence is complex - it is not an 'all or nothing' proposition - as C-32 seems to contemplate.

Given the complexity and importance of this issue - and its tenuous connection to victims rights - one could wonder if this amendment will receive the attention it deserves.

Bill C-32 may not live up to expectations.  It may prove to be just window dressing.  None-the-less C-32 must receive careful consideration given - as even on a first reading - there appear to be potential deficiencies.