Victims Bill of Rights : The Hidden Poison Pill

The devil is often in the details and it seems like there may indeed be a poison pill buried deep within the Conservatives’ Victims Bill of Rights.

But first some background.

In April 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 government 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 contends 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 and already confer many of the ‘rights’ contained in the new legislation.

To the extent that the new victims bill addresses and modestly expands these pre-existing measures there can be little complainant - victims deserve to be treated with dignity and to have access to information about matters that affect them.

Perhaps the government thought that a consensus on this general proposition would prevent anyone from actually reading the bill noticing that the Victims Bill of Rights does much, much more.

Buried deep within the new bill is an amendment to the Criminal Code that would allow anonymous evidence to be introduced in court, limit disclosure of information to an accused, and curtail cross examination.

In short the Victims Bill of Right creates a made-in-Canada Star Chamber (Note: the Star Chamber was a secret court - abolished in 1641 - used as a political weapon which became synonymous with abuse of power)

486.31 (1) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) The judge or justice may hold a hearing to determine whether the order should be made, and the hearing may be in private

A plain reading of this section should send a shiver down the spine of anyone who believes in the right to a fair trial (note: this does not seem to apply to the Conservatives).

Think about it - a private hearing that could result in anonymous witnesses and secret evidence.  So much for the ability of an accused to respond to serious allegations.

The importance of an accused being able to identify and confront their accuser in a criminal proceeding cannot be understated.  We need look no further than the scandalous Jian Ghomeshi affair to illustrate the point.

Ghomeshi first faced anonymous allegations and general accusations - little detail was provided and most of the withheld information (who, what, where, when, how) would have had the effect of identifying the witnesses. 

If this was the state of the evidence in court it would have been impossible to defend against the allegations.  Details can be important - did the accuser have a motive to lie, perhaps there is an alibi, perhaps details would point towards innocence

Of course in Ghomeshi’s case the opposite was true.  As names and details emerge the allegations ring louder and louder as being true.

A trial is the search for the truth - secret evidence, non-disclosure of information, and anonymous witnesses can only obscure reality. 

Yet this is could be a reality under the Victims Bill of Rights.

The ability to make full answer and defence is an animating principle of our criminal law.  The right to a fair trial and full disclosure are enshrined in our Constitution.  Non-disclosure of evidence has been a central feature in almost every wrongful conviction.  Yet this is what the Victims Bill of Rights contemplates.

But once again it appears that our fundamental freedoms mean little to the Conservatives - victims after all must come first - even before the Constitution.

By devaluing and diluting the Constitution the Victims Bill of Right makes victims of us all.