Winnipeg Free Press - PRINT EDITION

Victims' rights bill not all it's hyped up to be

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The Conservative government's new victims bill of rights isn't as innovative as the government trumpets. But nor is it as retrograde as its critics contend.

Critics of the bill have got it both right and wrong.

They're right when they remind us criminal law pits the machinery and power of the state against the individual. They're also right to remind us that, because criminal law entails the use of the might of the state, it can skirt the edges of abuse of power.

But they're wrong to see this legislation as a return to "medieval" justice. Catherine Latimer of the John Howard Society, writing in the Toronto Star, claims the law purports to "roll back more than 500 years of progress in criminal justice," and return us to a system based on archaic notions of vengeance. This is at best hyperbole, at worst, utter nonsense.

Apart from one anomalous provision -- an overdue change to the law of criminal evidence that would see prosecutors able to force spouses to testify against each other -- there's not a lot of substantive change to the criminal law in this bill.

The package introduced to Parliament last week codifies some provisions for the benefit or protection of victims and witnesses. It grants victims the right to be informed of the status of criminal investigations and prosecutions, to get copies of bail or probation orders, to present a victim-impact statement, to request, in a sexual assault or stalking case, that the accused not be allowed to personally cross-examine the complainant, and victims under 18 have the right to a publication ban on their names, upon request.

Notably, however, it does not give victims the right to address a court, in writing or in person, on the merits of a plea-bargain agreement between the Crown prosecutor and the accused. Prime Minister Steven Harper has said the bill did not take that step because he didn't want to bog down an already overloaded criminal justice system by creating "victims as litigants."

The bill also makes it mandatory for judges to consider restitution orders in all cases.

Law reform commissions have for years advocated the criminal justice system use restitution orders more extensively, for both practical and philosophical reasons. And though many criminals are indigents, a surprising number have substantial non-liquid assets -- especially cars, motorcycles and trucks.

A restitution order brings home to the offender the wrong he's done by making him pay out of pocket. At the same time, receiving money also often best meets the victim's workaday needs. Commendably, this bill also makes criminal court restitution orders registerable in, and collectable through, the civil courts. Garnishment of an offender's bank account or paycheque, or seizing and selling his vehicle, are handy hammers to bring down on offenders who won't voluntarily pay up.

But oddly, there's another kind of restitution the bill doesn't address.

The principal victim of a crime is the wronged individual. But the other victim is society, whose values were threatened or breached. So society, too, has a claim to reparation. A claim traditionally satisfied, in the clichéd words of numerous jurists, "by the hard coinage of imprisonment."

But society's claim is often better met by a creative penalty, such as a community service order.

Such orders, if strictly enforced, compel a criminal to do something good to make up for the wrong he's done society. Compelling criminals to repair vandalized property, remove graffiti, assist the disabled or landscape public or non-profit-organization land promotes community welfare, even as it punishes the offender. Beefing up their use would have been consonant with the bill's intention of bolstering victim rights.

The Conservative government's bill cleverly taps into a moral and political home truth: Crime not fully addressed as to its consequences is unjust -- not for just its direct victims, but for the rest of us, as potential victims.

But on close scrutiny, the grab bag of amendments in the bill doesn't much live up to the tough-on-crime agenda the Conservative government touts, and its critics love to assail.

Its practical workaday effect on Canada's criminal courts is likely to be fairly minimal.

Dressing it up as a bill of rights won't give it any more courtroom clout than the wording of the legislation expressly allows.

 

Douglas J. Johnston is a Winnipeg lawyer.

Republished from the Winnipeg Free Press print edition April 12, 2014 A17

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