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.
Bill C-489 is the first in an expected wave of 'victims rights' legislation. While in principle I support the intent of the bill and its goals there are some areas of the bill where further evaluation is warranted. This is not somesort of back handed compliment - Mr. Warawa should be commended for his initiative and compassion for his constituents.
However, the fairness and effectiveness of Bill C-489's could be improved (and I hope it will be through amendments at committee). Bill C-489 is overly specific and a may be slightly too inflexible. The positive intent and goals behind this legislation can in fact be achieved (and achieved more effectively) through less specificity combined with a reliance on judicial discretion when crafting probation and prohibition conditions.
Section 161 - Order of Prohibition
Cause 1 of the bill seeks to add the option of a geographical restriction or boundary between the offender and the victim to a prohibition order.
There clearly is nothing wrong with this in principle. The condition is not mandatory and the Criminal Code allows a judge the discretion to add exceptions to the geographical restriction.
The logical issue is this: where did the geographic boundary of 2 kilometers come from? What is the evidence that this is the appropriate distance?
I readily agree that having the option of a condition of this type is appropriate. But if we trust judges to exercise discretion about exceptions to the condition why not discretion on the boundary distance itself There may be cases may call for a smaller geographical limit and certain there are cases that cry out for a greater distance.
Judicial discretion forms part of the bed rock of our justice system. A sentencing judge knows the facts of the case, the circumstances of the offender, and they must consider the input of the victim.
These sentencing judges are the people that are in the best position to impose an appropriate geographical distance - whether that be 500 meters, 1 kilometer, 2 kilometers, or more.
Legislation that is overly specific and then applied generally inevitably leads to problems. A more flexible approach of general legislation which is then applied to specific cases utilizing principles of judicial discretion is preferable.
General legislation focused through the lens of judicial discretion results in decisions that are fairer, easier to enforce, and that ultimately are more effective.
A blanked 2 kilometer boundary may be too large in small town settings due to the size of the town. On the other hand a 2 kilometer radius in large cities can poses a problem too - the boundary may cover hundreds of thousands of people and exclude attendance at many locations. This problem can be especially acute in cities where programs designed to assist and rehabilitate offenders are often clustered together (as is the case in Ottawa).
The Criminal Code provides that a judge will have the ability add exceptions to the conditions. An overly broad condition with multiple and complex exceptions will result in more error prone sentencing, more uncertainty, increased enforcement difficulties, and potentially unwarranted interference with the offenders liberty.
It would be preferable to utilize judicial discretion to cure these problems - quite simply judges should be able to impose the appropriate geographical restriction - one that is not decided in a vacuum but in the courtroom.Probation Conditions
Clause 2(1) directs the imposition of a mandatory no contact provision between the offender, victim, witness, or other person identified in the order.
It is positive that the legislation provides for exceptions to allow contact with the victim when is consent is given.
However, section 732.1 of the Criminal Code already allows for the imposition of this proposed condition. This type of condition is routinely, if not always, imposed in the courts.
For example, if the offence is domestic in nature (i.e. a spousal assault) there is always victim input sought and if there is a desire to have NO contact a 'no contact condition' is always imposed.
In offences such as robberies, break and enters, frauds, and even thefts conditions prohibiting contact are almost a certainty.
Even if a victim desires contact with the offender a prohibition on contact is still imposed with an exception for contact - with the victims revocable consent.
The proposed amendments are simply not necessary.
A more practical issue exists in the language of the exception clause - it is a bit unclear.
Does the consent need to be provided when the condition is imposed or can consent be provided at a later date? It would seem that the latter interpretation is the case as this would allow the victims more control over the probation condition and as a result more control over their own well being. For example, the victim could revoke consent at a later date or alternatively give consent at a later date.
If the condition indeed is intended as above (that the the consent need not be provided at the exact moment sentence is imposed) then in reality there will be no practical difference over what is currently occurring in the courts.
This of course leads to the question: is this addition to the criminal code - which is already a weighty statute - truly necessary?
I hope that the Justice committee will carefully examine this proposed legislation. It is my hope (it is however a faint hope) that needless duplication will be eliminated.
I am more hopeful that judicial discretion will be better incorporated into the bill. This would promote individualized fairness and restraint, while at the same time protecting victims.
Issues concerning criminal justice policy can be highly charged. This is even more the case when victims rights forms part of the issue. The public is only well served when even the best-of-intentioned policies are carefully evaluated.
The impacts of bad policy are too great. Ideology must be left at the legislative door.