Bill C-32 and the Impact on the Criminal Justice System and Victims’ Rights in Canada
Ira Tee
March 18, 2016
Submitted as Major Paper in CLT
*This is a draft paper. It is made available to Community CLE registrants. This paper should not
be distributed to others without the author’s express opinion.
1
Introduction
On July 23, 2015, Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to
amend certain Acts1, came into force. The former Attorney General of Canada, Peter MacKay,
explained in a House of Commons debate2 that Bill C-32 “will truly be transformative in
improving rights for victims within our criminal justice system” and that “the time has come to
take a different approach to meeting the needs of victims of crime in Canada – an approach that
recognizes victims’ needs through clearly defined and enforceable rights.” Bill C-32 was
designed to address victims’ feelings of neglect and exclusion within the criminal justice system.
It is no surprise victims may feel excluded from the system as the parties in a criminal trial are
the Crown, who is acting on behalf of Canadian society, and the defendant. The victim is not a
party to the proceedings, but is treated as another witness3. Rather than focussing on the accused
or defendant in the proceedings, Bill C-32 brings the victim back into focus by creating rights for
victims. However, there is some debate about whether this Bill was necessary to begin with and
whether it created any significant changes for victims that did not already exist prior to its
enactment. Bill C-32 was introduced in the House of Commons after online consultations and inperson consultations were held in 16 cities across the country4. Bill C-32 enacted the Canadian
Victims Bill of Rights (“CVBR”)5, and amended the Criminal Code6, the Canada Evidence Act7,
and the Corrections and Conditional Release Act8. The focus of this paper is to describe the
1
Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts, 2nd Sess, 41st Parl, 2015
(assented to 23 April 2015) (“Bill C-32”).
2
House of Commons Debates, 41st Parl, 2nd Sess, No 147 (20 February 2015) at 1005 (Hon Peter
MacKay).
3
Canada, Parliamentary Information and Research Service, Bill C-32: An Act to enact the Canadian Victims Bill of
Rights and to amend certain Acts Legislative Summary (Ottawa: Library of Parliament, 2014) at 1.
4
Ibid.
5
Canadian Victims Bill of Rights, SC 2015, c C-13.
6
Criminal Code, RSC 1985, c C-46.
7
Canada Evidence Act, RSC 1985, c C-5 (“CEA”).
8
Corrections and Conditional Release Act, SC 1992, c 20 (“CCRA”).
2
provisions of Bill C-32 and consider the changes for victims which the Bill implemented preand post-trial. This paper will also consider whether Bill C-32 brought any significant changes to
victims by considering other legislation and case law.
Canadian Victims Bill of Rights
The largest change with Bill C-32 is the enactment of the CVBR. The CVBR defines a
‘victim’ to mean “an individual who has suffered physical or emotional harm, property damage
or economic loss as the result of the commission or alleged commission of an offence”9. This is a
change from the previous definition of a ‘victim’ which only stated that a victim “includes the
victim of an alleged offence”10. The CVBR also allows for a representative of the victim to act on
his or her behalf, if the victim died or is incapable of acting. Representatives include the victim’s
spouse or person with whom the victim has been in a conjugal relationship for at least one year,
the victim’s relatives or dependants, and persons responsible for the victim or for the care of the
victim’s dependants11. An exception to this is that a person who would normally be able to claim
as a representative of the victim but who is charged or found guilty of an offence against the
victim, is not able to claim under the CVBR12.
In addition to setting out the definition of a victim and who may claim under the CVBR,
the CVBR creates four types of rights for victims: the right to information, the right to
participation, the right to security, and the right to restitution. The right to information13gives a
victim the right to information about their role in the criminal justice system, victims services
that they can use, and the ability to file a complaint if any of the rights under the CVBR are
9
CVBR, s 2.
Criminal Code, RSC 1985, c C-46, s 2 as it appeared on 22 July 2015.
11
CVBR, s 3.
12
CVBR, s 4.
13
CVBR, ss. 6, 7, 8.
10
3
infringed or denied. If the offender is in a correctional facility, the victim also has the right to
information about the offender’s conditional release and hearings in front of the Review Board if
the accused was found not criminally responsible on account of mental disorder (“NCRMD”), or
was found unfit to stand trial14.
Under the right to protection, the CVBR gives every victim the right to have their security
and privacy considered by the appropriate authorities in the justice system, and “to have
reasonable and necessary measures taken by the appropriate authorities in the criminal justice
system to protect the victim from intimidation and retaliation”15. In addition, if the victim is a
complainant or witness to the offence, he or she can request for their identity to be protected and
that they be permitted to use testimonial aids16.
Under the right to participation, the CVBR allows a victim to present a victim impact
statement and to have it considered by the appropriate authorities. A victim is also allowed to
communicate their opinion on the decisions that appropriate authorities in the criminal justice
system make which affect the rights given under the CVBR and to have their opinion
considered17.
Lastly, every victim has the right to restitution. Under the CVBR, “[e]very victim has the
right to have the court consider making a restitution order against the offender”18. If the
restitution order is granted, the CVRA also gives the victim the right to enter the restitution order
“as a civil court judgment that is enforceable against the offender”19.
14
CVBR, s 8.
CVBR, ss 9, 10, 11.
16
CVBR, ss 12, 13.
17
CVBR, ss 14, 15.
18
CVBR, s 16.
19
CVBR, s 17.
15
4
The general provisions of the CVBR provide that the CVBR applies to a victim from the
time that an offence is reported, and up to and including the time that the offender is in
corrections or being conditionally released, or if the offender is under the jurisdiction of the court
or Review Board due to their NCRMD designation or fitness to stand trial20. The CVBR will only
be applicable if the victim is present in Canada, is a Canadian citizen, or is a permanent resident
according to the Immigration and Refugee Protection Act21. In respect to its interpretation, the
CVBR is “to be construed and applied in a manner that is reasonable in the circumstances” and
would not likely interfere with the administration of justice, the police, prosecutorial discretion,
ministerial discretion22. It should also not be construed in a way that would endanger an
individual or harm international relations or national defence. If the CVBR is inconsistent with
other legislation, then the CVBR trumps the other legislation, except the Canadian Bill of
Rights23, the Canadian Human Rights Act24, the Official Languages Act25, the Access to
Information Act26, and the Privacy Act27. The CVBR is of course also subject to the Canadian
Charter of Rights and Freedoms28.
If any of the rights under the CVBR are infringed or denied, the victim has the right to file
a complaint with the governing department or agency, according to the complaints procedure in
place or in accordance with the laws of the province or territory. If a victim is not satisfied with
the outcome from a complaint against a federal body, he or she can have it further reviewed by
20
CVBR, s 18.
CVBR, s 19(2).
22
CVBR, s 20.
23
Canadian Bill of Rights, SC 1960, c 44.
24
Canadian Human Rights Act, RSC, 1985, c H-6.
25
Official Languages Act, RSC 1985, c C-31 (4th Supp.).
26
Access to Information Act, RSC 1985, c A-1.
27
Privacy Act, RSC 1985, c P-21
28
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
B to the Canada Act 1982 (UK), 1982, c 11 (“Charter”).
21
5
“any authority that has jurisdiction to review complaints in relation to that department, agency or
body”29.
While the CVBR does provide several rights and remedies for victims, they are still not a
party to the proceedings30. Furthermore, a victim does not have a cause of action or claim for
damages if any of their CVBR rights were denied or infringed31. A decision or order can also not
be appealed solely because a right under the CVBR was denied or infringed32.
Lastly, Bill C-32 stipulates that five years after the CVBR comes into force, a Parliamentary
committee will be established to review it. As the CVBR came into force in 2015, the review is
supposed to occur in 2020.
Criminal Code Amendments
Included in Bill C-32 are many amendments to the Criminal Code. There are about
twenty-eight sections that were replaced, eight newly added sections, and five sections that were
repealed. This section of my paper will summarize the amendments according to replacements,
additions, and repealed provisions.
Replacements
The first major replacement was the definition of “victim” in section 2 of the Criminal
Code, in order to conform with the definition of ‘victim’ in the CVBR. Rather than just being the
victim of an alleged offence, the amendment describes the victim as a person who has suffered a
form of physical or emotional harm, property damage, or economic loss due to the offence. The
29
CVBR, ss 25, 26.
CVBR, s 27.
31
CVBR, s 28.
32
CVBR, s 29.
30
6
definition is expanded to consider the various types of damage that can occur to someone and to
allow the victim’s experience to be varied to these types of harm.
Secondly, there was a change regarding the production orders to the accused under
section 278.2. The previous section was amended so that instead of a list of offences to which
records relating to the complainant or witness need not be disclosed to the accused, the
amendment instead proclaims that for any offence in the Criminal Code, the records relating to
the complainant or witness need not be produced, except in accordance with subsequent sections.
In section 278.3, the amount of time an application for production of records should be served on
the prosecutor, to the records holder, and to the complainant or witness was increased from 7
days to 14 days prior to the hearing. When a judge is considering whether to make a production
order of the records pertaining to the complainant or witness, the judge must also consider the
complainant’s or witness’ right to personal security, along with the original factors of right to
privacy and equality33.
Bill C-32 also amended the offence of intimidation of a justice system participant under
section 423.1(1). Rather than enumerating the acts that constitute intimidation, the new section
provides a blanket provision that any conduct that is intended to cause the justice system
participant to be fearful is intimidation.
While courtrooms in Canada have traditionally been open to the public, there are certain
cases in which the public can be excluded, in accordance with section 486(2). That section has
now been replaced to include more factors that the judge must consider before ordering public
exclusion. Some of the factors now include society’s interest in the participation of witnesses, the
ability of the witness to give a full and candid account of the acts, and considerations regarding
the witness’ and justice system participants’ security and protection.
33
Criminal Code, ss 278.5(2), 278.7(2), 278.7(3).
7
With regard to witnesses under 18 years old and those who have a disability, section
486.1 now allows them to apply for a support person to be with them while they testify, rather
than relying on the prosecutor only. In considering this application, the judge not only has to
consider whether this would facilitate the witness to give a full and candid account of the events,
but now also if it would be “in the interest of the proper administration of justice”34. The
amendments include that an application can also be heard by any judge or justice with
jurisdiction if a judge or justice has not yet been assigned. The same factors in the above
exclusion of public section, are the new factors that judges should consider before granting an
exclusion order. These factors are similar to the exclusion of public amendments, including the
need to protect the witness’ security and society’s interest to encourage witnesses to report
offences and participate in the process35. The amendments made to the support person provision
are also repeated in section 486.2 in regard to being able to testify outside of the court room for
witnesses under 18 and those who have a disability.
Since an accused has the right to cross-examine a witness, there are special provisions for
witnesses under 18 years old. With Bill C-32, section 486.3 was amended to include a provision
for certain offences. If the accused was charged with an offence under sections 264 (criminal
harassment), 271 (sexual assault), 272 (sexual assault with a weapon or causing bodily harm),
and 273 (aggravated sexual assault), then the witness can apply to the judge for an order that the
accused not personally cross-examine them if the accused is self-represented36. If an order is
made, the judge or justice appoints counsel to conduct the cross-examination.
For sexual offences specifically, a victim may apply for an order restricting publication of
information that could potentially identify them under section 486.4. A change to this section is
34
Criminal Code, s 486.1(2).
Criminal Code, s 486.1(3).
36
Criminal Code, s 486.3(2).
35
8
the use of the terminology ‘victim’ rather than the previous ‘complainant’. Secondly, subsections
486.4(2.1) and (2.2) were included to consider victims under 18 years’ old who were involved in
an offence that was not listed in subsection 486.4(1). For a victim under 18 years old, he or she
may apply for an order that their identity not be published or broadcast in any way, and the judge
must inform them of their right to apply for such an order.
Section 486.5 was also amended to expand the restrictions for publication of the identity
of a justice system participant. Subsection 486.5(1) provides identity protection for a victim or
witness, if the offence was not already covered in section 486.4. Comparatively, subsections
486.5(2) and (2.1) especially consider the other justice system participants where the offences
are related to organized crime or terrorism. These justice system participants who are not the
witnesses or victim can apply to have the judge order that their identity not be published or
broadcast in any way. Another change to this section is that, in deciding whether to make an
order, the judge just has to consider whether there is a real and substantial risk that the victim,
witness or justice system participant would suffer harm37, rather than significant harm as
required under the previous section.
Under section 672.5, if the offender was found not criminally responsible on account of
mental disorder, then a victim can file a victim impact statement to be included at a disposition
hearing in front of the Review Board. This section was amended to include instructions about
what the victim impact statement should include – the physical or emotional harm, property
damage, or economic loss. There is also now a new form (Form 48.2) that must be used for this
victim impact statement.
When it comes to the sentencing provisions in sections 718 and 718.2, there are a few
minor amendments. First, in section 718 which sets out the purposes of sentencing, the
37
Criminal Code, s 486.5(7).
9
‘protection of society’ is included as the fundamental purpose. In the objectives of sentencing
listed in section 718, the words “and the harm done to the victims or community” are added to
clause (a) which stated previously only stated “to denounce the unlawful act”. Secondly, in the
sentencing principles in section 718.2(e), which require judges to consider “sanctions other than
imprisonment that are reasonable in the circumstances”, that clause now requires judges to
decide that a sanction other than imprisonment would also “be consistent with the harm done to
the victims or community.”
Victim impact statements in section 722 and community impact statements in section
722.2 were also amended. The new section on victim impact statements sets out what the
statement can include, how it should be presented, and directions to use a new form to be used
for the statement. The community impact statement section also enumerates how a community
impact statement can be provided and presented to the court, with similar provisions as set out in
the victim impact statement.
If an offender receives a probation order, section 732.1 was amended to indicate that the
court must give a copy of the probation order to the victim, if they request it.
The victim surcharge provision in section 737 has been amended so that the time for
payment of the surcharge would be established by the lieutenant governor in council, and if no
time is established, then the surcharge must be paid within a reasonable time.
Section 741 dealing with the enforcement of a restitution order was amended to declare
that an offender who fails to make payments is in default of the order and the remaining amount
owed may be entered as a civil judgment. Section 741.1 dealing with the notice of restitution
orders was also amended to include a clause that if the restitution is to be paid to a public
authority, the public authority should be notified of the content of the restitution order.
10
Lastly, if a court imposes a conditional sentence order on an offender, section 742.3 has
been amended to include a provision that a copy of the order shall be given to the victim, if they
request it.
Additions
Section 2.2 of the Criminal Code is a new provision that defines when a person can act
on a victim’s behalf, and provides the exception that a person who caused the harm, but who
would otherwise be able to act on the victim’s behalf, is not able to do so.
Secondly, section 278.4(2.1) was added so that at hearings for production of records of
the complainant or witness, the judge must inform the records holder of their right to be
represented by counsel at the hearing.
A major addition to the Criminal Code is section 486.31 which deals with the nondisclosure of a witness’ identity. A witness may now apply to a judge to make an order that any
information that could potentially identify him or her not be disclosed. Factors for the judge to
consider include balancing the accused’s right to a fair and public hearing, against the witness’
concerns about their security or protection. Included as well are the factors of protecting a peace
officer’s undercover identity and protection of national security or intelligence.
When bail is considered for an accused under section 515, the new subsection (13)
provides that the judge or justice is now obligated to consider the safety and security of the
victim. As well, subsection 515(14) provides that if an accused does receive bail, the victim is to
be provided with a copy of the bail order if they request it.
Under section 606, which deals with pleas, four new subsections were added – (4.1),
(4.2), (4.3), and (4.4). These new subsections provide that for certain offences, such as murder
11
and personal injury offences, the court has to inquire of the prosecutor, if a plea agreement has
been made, whether the victim has been informed of that agreement. The same is required for
certain indictable offences. If the victim has not been informed of the plea agreement, subsection
606(4.3) requires the prosecutor to inform the victim of it as soon as possible. A failure to inform
the victim of the plea agreement does not invalidate it38.
Another significant addition is the section regarding restitution under section 737.1. This
new section provides that a court can consider making a restitution order if the court discharges
the offender. Included are provisions regarding the timing of the application of the restitution
order and a form the victim or other persons should fill out in order to apply for restitution. The
section also adds that if the court does not make a restitution order, the reasons for this need to be
recorded. Subsequent sections that were added – sections 739.1, 739.2, 739.3, and 739.4 consider the offender’s side of a restitution order, including that the offender’s ability to pay is
not determinative of an order.
Repealed
Section 380.3, which dealt with the court considering restitution orders was repealed, as it
is now under the CVBR sections 16 and 17. Also repealed is section 380.4, which allowed for a
community impact statement to be presented. The community impact statement is now dealt with
under section 722.2, as discussed above.
Amendments to the Canada Evidence Act
Although very short, one of the most important amendments that Bill C-32 makes is the
amendment to the CEA. The amendment changes the previous restriction on spousal
38
Criminal Code, s 606(4.4).
12
compellability. Previously, it was a general rule that spouses are not compellable as witnesses
against their spouse. Whereas the previous version of the provision39 contained only a list of
offences which were exceptions to the ban on spousal compellability, the amendment removed
the list of exceptions and made all spouses compellable no matter the offence. Section 4(2) of the
CEA now reads, “No person is incompetent, or uncompellable, to testify for the prosecution by
reason only that they are married to the accused.”
Related to the above amendment, subsections 4(4) and 4(5) were repealed. These sections
provided that spouses were compellable for certain offences against youth, and that nothing in
section 4 of the CEA would cause the spouse of the accused to be called a witness against the
accused without their consent at common law. Since the amendment that the accused’s spouse is
compellable against the accused no matter the offence, there is no need for these subsections.
The last addition to the CEA is subsection 16(3.1) which prevents counsel from asking
any potential witnesses about his or her understanding of a promise to tell the truth, if it relates to
whether the witness would be able to testify.
Amendments to Corrections and Conditional Release Act
Lastly, Bill C-32 amended the CCRA through replacement of words in several sections,
seven new additional sections, and the repeal of one section.
First, the CCRA’s definition of ‘victim’ was replaced with the definition of ‘victim’ in
section 2 of the CVBR. Since the CVBR included a section on who can act on the victim’s behalf,
subsections 2(3) and 2(4) were included to mirror the same CVBR section and the exception.
Consistent with the CVBR’s guarantee of the right to information, section 26 of the CCRA
was amended. Subsection 26(1)(b)(v) authorizes the Commissioner (of Corrections) to disclose,
39
CEA, s 4(2) as it appeared on 22 July 2015.
13
to a victim who requests it, information regarding the offender’s departure from Canada under
the Immigration and Refugee Protection Act40. Subsection 26(1)(c) has also been added,
providing that the Commissioner must disclose information to a victim who requests information
about the date on which the offender will be released for any reason (temporary absence, work
release, parole, statutory release), the conditions attached to the release, and the offender’s
location when released. The decision of the Commissioner to provide information to the victim is
always determined by considering the offender’s privacy rights and public safety. The disclosure
of the offender’s release date, conditions, and location must be disclosed to the victim before the
day the offender is released, preferably at least 14 days beforehand41. In the event that the
offender’s release information changes, the Commissioner has a continuing duty to update the
victim42.
Other additions to this section include a provision that the victim can designate a
representative to whom the Commissioner can disclose information43. If a victim originally
requested information changes his or her mind and no longer wants disclosure, he or she must
write to the Commissioner in respect to this decision44. If the Commissioner has attempted to
contact the victim but is unable to do so after the victim requests for disclosure, the inability to
contact the victim is deemed to be a withdrawal of the request for disclosure45.
Another addition is section 26.1 which provides victim-offender mediation services. The
services revolve around restorative justice programs and mediation. The mediation services can
40
Immigration and Refugee Protection Act, supra.
CCRA, s 26(1.1).
42
CCRA, s 26(1.2).
43
CCRA, s 26(5).
44
CCRA, s 26(6).
45
CCRA, s 26(7).
41
14
only be conducted if the Commissioner’s Directives are met and if all parties voluntarily agree to
participate.
With regard to the sections about long-term supervision conditions under section 134.1,
three subsections were added – (2.1), (2.2), and (2.3). The Review Board must consider the
victim’s impact statement if the victim provides one to them, and the Review Board must impose
any conditions that would be reasonable and necessary to protect the victim. The Review Board
must also provide written reasons if it decides not to impose any conditions. If a victim does not
provide an impact statement to the Review Board, the Review Board is not precluded from
imposing conditions relating to the victim. The Review Board can also change or remove any
conditions it imposes at any time during the long-term supervision46.
For mandatory review hearings, Bill C-32 repealed subsection 140(6), which said that if
there was an observer at a hearing, the information or documents used in the hearing did not
mean they would become publicly available. At mandatory review hearings, subsection 140(10)
is consistent with the CVBR’s right to participation, as a victim may attend a hearing and present
a statement about the harm he or she suffered and its continuing impact. In upholding a victim’s
right to information, four new subsections were added to section 142, which provided that
disclosure of information at mandatory review hearings be given to victims. Similar to the
disclosure when an offender was being released, a victim can have a representative who is given
information on the victim’s behalf47. A victim is also able to withdraw his or her request for
information, and if the Commissioner fails to contact the victim after he or she requests for
disclosure, this is deemed as a withdrawal of the request for information 48.
46
CCRA, s 134.1(4)(b).
CCRA, s 142(3.1).
48
CCRA, ss 142(3.2), (3.3).
47
15
Lastly, section 144.1 was added, which provides that a victim should receive a copy of
any decision made in regard to a mandatory review hearing if he or she requests it. The decision
whether or not to produce a copy for the victim is determined by considering whether any
person’s safety is at issue, if it would reveal a confidential source of information, or if it would
prevent the offender from successfully reintegrating into society.
Landscape before the CVBR
When the former Minister of Justice Peter MacKay introduced the CVBR, it was to be a
new era for victims’ rights. As described above, there was a plethora of amendments to the
important legislation in the criminal justice system. While a large number of amendments to the
legislation may suggest that there will be a significant change in the criminal justice system, the
words alone do not necessarily mean a change actually occurs. In order to consider whether the
CVBR does make a difference, there should be a comparison of the rights and services that
victims were provided prior to and after the enactment of the CVBR. In this section, I will
consider the legislation in place and victims’ services prior to the CVBR.
Charter of Rights and Freedoms
First, there is the Charter49. While the Charter does not explicitly address victims’ rights,
several Charter rights can be applied to protect victims’ rights. For example, in Bill C-49’s50
preamble, sections 7 (the right to life, liberty, and security of the person) and 15 (the right to
equality) were cited by Parliament as reasons for amending the Criminal Code to increase
49
Canadian Charter of Rights and Freedoms, supra.
Bill C-49, An Act to amend the Criminal Code (sexual assault), 3rd Sess, 34th Parl, 1992
(assented to 15 June 1992). Bill C-49 amended the Criminal Code’s ‘rape shield’ laws in section 276. The
amendment prevented the use of sexual offence victims’ past sexual history to support claims that the victim was
more likely to have consented or that the victim was less worthy of belief.
50
16
victims’ rights51. Section 8 of the Charter (the right to be free from unreasonable search and
seizure) can also be said to be a privacy right. While the accused normally exercises this right in
the course of his or her involvement in the criminal justice system, section 8 could be applied to
the victim. Especially in previous cases where the offence was of a sexual nature, victims were
often subject to intrusive lines of cross-examination, where their personal history and private
information were put in the spotlight. For example, when the defence applies for production of
counselling records, this is arguably an unreasonable seizure of the victim’s right to have their
records seized by the defence and put before the court52. Of course, this will still have to be
balanced with the accused’s right to make full answer and defence.
Canadian Statement of Basic Principles of Justice for Victims of Crime
In 2003, Parliament endorsed the Canadian Statement of Basic Principles of Justice for
Victims of Crime53, which attempted to follow the United Nations’ Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power54. The endorsement of the
Canadian Statement affirmed that the Charter protected all persons, that victims’ and offender’s
rights must be balanced, and that the federal and provincial governments agreed that the
Canadian Statement should guide how victims are treated in the criminal justice system55. The
Canadian Statement states that victims’ privacy “should be considered and respected to the
greatest extent possible” and that victims’ safety and security is to be considered at all times.
51
Joan Barrett, “Expanding Victims’ Rights in the Charter Era and Beyond”, (2008) 40 SCLR (2d) 627 at para 27.
Canada, Department of Justice, “Victim Privacy and the Open Court Principle”, by Jamie Cameron
(Ottawa: Policy Centre for Victims Issues, 2003) at 36.
53
Canadian Statement of Basic Principles of Justice for Victims of Crime, online: (2003)
<http://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/03/princ.html> (“Canadian Statement”).
54
UNGA, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res 40/34,
UNGAOR, 40th Sess, UN Doc A/RES/40/34 (29 November 1985) <http://undocs.org/A/RES/40/34> accessed 16
March 2016.
55
Canadian Statement at para 2.
52
17
Like the CVBR, the Canadian Statement also states that victims be given information about the
progress of the case, from investigations to corrections, and about their role in the system. The
Canadian Statement ends with the suggestion that victims be given a way to voice their concerns
if they feel the Canadian Statement has not been adhered to in their situation56.
While the Canadian Statement was endorsed by the federal and provincial governments,
it is not legislation that can be enforced. Instead the Canadian Statement sets out basic guidelines
or goals which the governments hoped would be followed, but there were no actual rights given
to victims. The Canadian Statement was just that – a statement of what should occur and
recognition of how victims should be treated, but with no actual action to ensure victims are
treated properly. Even though the Canadian Statement has not been ‘repealed’ or withdrawn with
the enactment of the CVBR, the principles it encouraged are now encompassed within the CVBR.
B.C. Victims of Crime Act
The B.C. Legislature enacted the Victims of Crime Act (“VCA”)57, which governs what
victims are entitled to provincially while they navigate the criminal justice system. In the VCA,
“victim” is defined similarly to the CVBR, as it includes persons who suffer “physical or mental
injury or economic loss… [and includes the] individual against whom the offence was
perpetrated or, …is a spouse, sibling, child or parent of the individual” (VCA, s. 2). Section 3 of
the VCA provides that the Attorney General ensure that the victim is provided with legal advice
and representation, such as when there is an application for a third party record, or if the victim
can not afford legal representation on their own.
56
57
Canadian Statement at para 3.
Victims of Crime Act, RSBC 1996, c 478 (“VCA”).
18
Section 4 of the VCA is similar to the CVBR’s sections regarding the submission of a
victim impact statement, as it directs Crown counsel to make sure a victim has been able to
describe to the court the impact the offence has had on them before sentencing of the offender.
Again, similar to the CVBR, there are several sections that designate information to be given to
victims.
Section 5 of the VCA directs justice system personnel to give victims information about
the operation of the justice system, victim services, the Freedom of Information and Protection
of Privacy Act58, the Crime Victim Assistance Act59, and the VCA. Section 6 of the VCA also
allows the victim to request and receive information about the investigation, court appearances,
the sentence, and release dates and conditions post-sentencing. With regard to the custody and
release conditions for an offender, section 7 of the VCA allows for a victim to request and receive
information if the victim’s interests outweigh the offender’s privacy interests. The information
that may be given includes the offender’s location while in custody, the date and conditions of
release, any changes to the release conditions, and the location where the offender will be if
released on probation or parole60.
Sections 8.1 and 9 of the VCA also provides for a victim surcharge levy that the offender
must pay if a fine is imposed, and sets out what the Attorney General can do with these funds.
As in the CVBR, if anything under the VCA was not done or was omitted to be done, a
victim does not have a cause of action, an appeal, a claim for damages or other remedy61. As
58
Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165.
Crime Victim Assistance Act, SBC 2001, c 38 (“CVAA”).
60
VCA, s 7.
61
VCA, s 10.
59
19
well, an order, conviction, or sentence cannot be appealed solely on the basis that one of the
rights granted by the VCA was infringed or denied62.
In terms of a complaints mechanism, the B.C. Ombudsperson63 has jurisdiction to
investigate a complaint regarding the VCA. However, the Ombudsperson cannot investigate or
interfere with decisions that Crown counsel or special prosecutors make in the prosecution of an
offence64.
An annual report on the VCA is also conducted, as part of the Attorney General Act65, on
the VCA’s administration66.
The VCA also considers victims’ circumstances and specifically makes it an offence for
an employer to punish a victim for taking time from work to appear in court as a witness or to
meet with justice system personnel67.
Crime Victim Assistance Act
Along with the VCA, the B.C. Legislature has also enacted the Crime Victim Assistance
Act (“CVAA”), which as the name suggests, is meant to assists victims of crime. The CVAA
applies only to offences that occurred after July 1, 197268, but does not include motor vehicle
offences or those that fall under the Workers Compensation Act69.
Similar to the CVBR, those who can apply for assistance include the victim or person who
was directly injured, an immediate family member, a person who may not be related to the
victim but who is strongly emotionally attached to the victim, and a legal representative on
62
VCA, s 11.
Ombudsperson Act, RSBC 1996, c 340.
64
VCA, s 12.
65
Attorney General Act, RSBC 1996, c 22.
66
VCA, s 13.
67
VCA, ss 14, 15.
68
CVAA, s 2.
69
Workers Compensation Act, RSBC 1996, c 492.
63
20
behalf of the victim70. Applications for benefits can be made within a year after the date of the
offence, but for sexual offences there is no time limit71.
Some of the benefits that may be awarded to a victim or on behalf of the victim include
medical services, disability aids, counselling services, protective measures, replacement of
personal property, income support, and transportation expenses72. All of the listed benefits under
section 4 of the CVAA are not equally available to the categories of those who may apply, but
decrease as the relation to the victim is farther removed.
Under section 5 of the CVAA, a victim may receive a benefit whether or not the offence is
prosecuted. Subsection 5(4) states that under the CVAA, a conviction, a discharge under section
730 of the Criminal Code, or a NCRMD finding is enough to conclude that the offence was
committed.
Similar to the CVBR, benefits cannot be given to a victim or immediate family member
who was a party to the offence73. Section 9 of the CVAA also states that any benefit may be
reduced, limited, suspended, or terminated if: the applicant refuses or fails to find another way to
receive compensation; the victim or family member’s conduct directly or indirectly contributed
to the death or injury; or the recipient does anything that jeopardizes his or her safety, or is
contrary to the benefit’s purpose or the condition in order to receive the benefit74. The Director
of Crime Victim Assistance (the “Director”) decides whether or not the actions described require
the benefit be reduced, suspended, or terminated. The other limit to the reception of the benefit
includes not cooperating with law enforcement authorities75.
70
CVAA, s 3.
Ibid.
72
CVAA, s 4.
73
CVAA, s 9.
74
CVAA, s 9(2)(c).
75
CVAA, s 9(3).
71
21
If an applicant is not approved for benefits, the victim or family members can request the
director to reconsider his or her decision within 60 days of the original decision76. The
reconsideration is conducted by persons who were not present at the original decision77. The
reconsideration decisions are not to be reviewed in court or appealed further, except on a
question of law or excess of jurisdiction78.
The victims and family members are able to commence a legal action against a person
arising out of the offence, but must also serve a copy to the Director79. The Director is also able
to bring an action against any person arising from the offence if the victim or family members
are receiving a benefit under the CVAA, but did not commence an action on their own, or, if the
victim or family members did commence an action, but a settlement was agreed to after the date
a benefit under the CVAA was provided80. In the Director’s action, the Director can claim and be
the assignee of the victim or family member’s rights to damages in the action that equal the value
of the benefits that have been or will be provided81. In addition, if the Director makes a claim,
the amount that a victim or family members claim in their own legal action that commences after
the Director’s action will be reduced by what the Director claims as damages or value of benefits
provided or will be provided in the Director’s action82.
Lastly, since this benefit would be granted to the victim or family members based on an
assessment of eligibility, section 23 of the CVAA states that if the victim or recipients should not
have been entitled to benefits, but otherwise still received benefits, they are liable to repay the
government. This repayment is a debt due to the provincial government, and the provincial
76
CVAA, s 13.
CVAA, s 14.
78
CVAA, s 14.1.
79
CVAA, s 15.
80
CVAA, s 16(1).
81
CVAA, s 16(2).
82
CVAA, s 16(3).
77
22
government may file a claim to recover the money, or deduct the amount from subsequent
benefit payments83.
One of the problems with receiving benefits under the CVAA are the conditions you have
to meet in order to receive benefits. There is almost a burden on the victim or his or her family
members to be able to prove their loss and show the director why they are deserving of
assistance. Acceptance and distribution of benefits are all in the discretion of the Director, as
well, so it seems like an arbitrary decision as to who receives benefits and how much they
receive. The provisions of the CVAA also give off the impression that it is to be used as a last
resort for victims of crime, and it is not available to every victim because there is an eligibility
designation.
Victims Services
The latest information on victims services comes from a Juristat article from 2011-2012
that was released in 201484. Although the information is date by about four years, the data is
useful to describe what victims services were like before the implementation of the CVBR. 760
victim service providers and six criminal injuries compensation programs were involved in the
study through the Victim Services Survey85. About 90% of service providers provided some type
of protection or crisis help, and aided victims’ navigation through the court system by court
accompaniment programs, assistance with preparing victim impact statements, or witness
preparation86. Some services also offered included medical services or hospital accompaniment,
83
CVAA, s 23(3).
Canada, Statistics Canada, “Victim services in Canada, 2011/2012”, by Mary Allen in Statistics Canada
catalogue No 85-002-X (Ottawa: Statistics Canada, 2014).
85
Ibid at 4.
86
Ibid at 4-5.
84
23
transportation, or shelter and housing services87. About 56% of the service providers gave some
compensation-related assistance in terms of claims for compensation. For some others, providers
gave financial compensation or helped pay for counselling.
For victims service providers on reserves, restorative justice services were the most
common type of service. This included victim offender mediation, sentencing circles, and
consensus-based decision-making on the sentence. However, the availability of these programs
varied across the country88.
The most common at victims services were police-based at 36%, followed by
community-based services, and then by non-profit organizations89. Not all service providers
provided services directly to the victims – some only referred victims to other organizations.
About 35% of service providers were mandated to service victims of specific types of offences
(for example, sexual offences), while the majority offered services to all victims in general90.
The Correctional Service of Canada (CSC) through the Parole Board of Canada provided
direct services to victims of crime. Victims may be eligible for financial aid to attend parole
hearings and participate. For example, in 2011-2012, at 140 parole hearings, 223 victim
statements were presented. Victims are also provided with information regarding the status of the
offender, including when the offender will be released, if they register with the CSC91.
Criminal injuries compensation programs did exist in all provinces, except for
Newfoundland and Labrador, but not the territories. In 2011-2012, $146 million was awarded to
victims through compensation programs. These programs would give financial aid to victims to
help with the financial impact of being a victim. The programs varied across the provinces due to
87
Ibid at 5.
Ibid at 6.
89
Ibid at 7.
90
Ibid at 8.
91
Ibid at 11.
88
24
different eligibility criteria but generally compensation can be awarded even if the offender was
not prosecuted or convicted. In 2011-2012, there were almost 20,000 applications for
compensation and about 78% were approved, 16% were rejected, and the remaining 6% had
other outcomes, such as the application being withdrawn92.
Does Bill C-32 and the CVBR change much?
Pretrial and Trial Procedure
One of the biggest changes is the change in the definition of ‘victim’, in the Criminal
Code. Rather than being limited to a person who suffers physical or emotional loss only, ‘victim’
has been expanded to those who have suffered property damage or economic loss, as well. This
definition is more inclusive of the various types of harms that can occur. The new provision that
allows for individuals to act on behalf of the direct victim is an acknowledgement that crime
impacts more than the primary victim. However, the new provisions still do not recognize
persons in an intimate relationship with the victim but who are not cohabiting with them, and
close friends or those not related to the victim from having an opportunity to present their views.
The provisions in the Criminal Code related to production of victim records93 require the
judge to consider personal security of victims and witnesses as a factor when determining
whether a production for records should be ordered. This addition will likely not provide any
significant change in present judicial practices whether records are ordered. Although not
previously been explicit of personal security, it is very likely already that judges had this factor
in mind when deciding whether or not to order disclosure of victims’ or witnesses’ personal
records.
92
93
Ibid at 12.
Criminal Code, ss 278.5(2), 278.7(2), 278.7(3).
25
In regard to testimony of witnesses under 18 or witnesses with a disability, the existing
provisions regarding the use of a support person94 or testifying outside the courtroom95 were
amended so as to enumerate factors to consider in such applications, in accordance with section
13 of the CVBR. While the new provisions now allow these types of witnesses to apply for the
special provisions on their own accord, rather than relying upon the prosecutor, it does not seem
likely that this change will significantly alter current practices. Crown counsel will continue to
seek these accommodations when they seem appropriate or helpful. The factors that were added
to the consideration of either section were already potentially included in the general clause “any
other factor that the judge or justice considers relevant”.
A large procedural change for judges, prosecutors, and defence counsel is in regard to the
victim’s right to participation under section 14 of the CVBR by having the right to convey their
views about decisions to be made by appropriate authorities including the new Criminal Code
subsections 606(4.1) to (4.4) dealing with pleas. If the accused is charged with a serious personal
injury offence, murder, or an indictable offence that has a maximum penalty of at least five
years, any plea negotiations or agreements that counsel put to the judge should have been relayed
to the victims before the court receives the plea agreement. The judge now has the responsibility
to ensure that he or she asks Crown counsel if the victim was informed. This will cause a
problem, however, when counsel resolve cases on the day of trial, just minutes before their
matter is called. Rather than consideration of the victim’s views on the plea agreement, the
victim would be informed, as is required in provision, but is stuck with living with the agreement
without much say. This section may also cause problems for defence counsel, whose clients may
want to get matters completed as quickly as possible. If Crown counsel need time to contact
94
95
Criminal Code, s. 486.1.
Criminal Code, s. 486.2.
26
victims and inform them of dispositions, then defence counsel and their clients will have to wait
for the victims to be informed. This means that matters will not be settled as quickly as
previously.
Lastly, the CEA was amended so that no one is considered incompetent or uncompellable
to testify for the prosecution just because they are married to the accused96. This is a major
change in the manner in which the prosecution and defence will run their cases, particularly in
domestic abuse cases. Previously, spouses were not compellable, except where the accused was
charged with certain offences, but this new change leaves all spouses compellable for any
offence. This change may see many unwilling witnesses and more hostile witness applications.
Sentencing
Section 15 of the CVBR, the victim’s right to present a victim impact statement and have
it considered by the appropriate authorities, is strengthened with Bill C-32. Following the
amendment to the Criminal Code section 722, a victim impact statement can now be received not
just from the principal victim, but also from family members and relatives who were affected by
the crime. As well, those who experienced economic or property loss can now file a victim
impact statement, because of the expansion of the definition of ‘victim’. With the above
expansions, it is likely more victim impact statements will be submitted by a variety of people
associated with the victim. Thus what is to likely change is the number of victim impact
statements submitted, the types of harm they include, and the number of victim impact
statements reported by others on behalf of the victim.
The section governing community impact statements has been expanded and is now more
in line with current victim impact statement provisions. Community impact statements are not a
96
CEA, s 4(2).
27
new concept, however they used to require that the statement had to be in writing and explain
how the statement reflected the community’s views on the case. Under the new changes,
community impact statements can be presented as appropriate, just as with victim impact
statements. However, the community impact statement is not necessarily going to be considered,
unlike the victim impact statement, after a finding of guilt. Whereas there can be an adjournment
for a victim to complete a victim impact statement, this is not the case with a community impact
statement.
What is likely to be different for both victim impact statements and community impact
statements is the use of standardized impact statement forms. In considering the effect of the
CVBR, Derrick J. commented on the changes, if any, of the victim impact statements submitted
in the case of R v BP97. At the time of her judgment, the CVBR was not in force, but her decision
to discuss it was to prevent concerns that her sentencing judgment would be different if she had
waited until after the CVBR was in force. The court reiterated principles that victims are not a
party to the proceedings, and that vengeance does not belong in sentencing98. It is a first principle
that victim impact statements are to assist the judge in finding an appropriate sentence, and they
are not to contain criticisms of the offender nor recommendations or comments about the
sentence99. The court was of the impression that the CVBR did not change, in substance, what a
victim could include in their victim impact statement, and in fact the standard form (Form 34.2)
even included the prohibited content that had previously been in set out in case law. In essence,
Derrick J. leaned towards the idea that the substance of a victim impact statement did not change
with the CVBR, except to the extent that a standard form would aid in preventing victims from
including impermissible statements.
97
R v BP, 2015 NSPC 34, 2015 CarswellNS 521.
Ibid at paras 33-34.
99
Ibid at paras 36-37.
98
28
In terms of how the the CVBR has been applied, R v Zadeh100 is an example of a judge
explicitly listing the sections of the CVBR that they were considering. In this case, sections 9 and
10 of the CVBR regarding the right to security and to have that security considered to protect the
victim from intimidation and retaliation, were specifically mentioned101. When delivering the
sentence and conditions imposed on the offender, the judge stated he was taking into account the
victim’s right, and his justification for imposing a no-contact order specifically referenced safety
and security of the victim102. At the end of the sentence, the judge also stated that the Crown
shall inform the victim of the sentence imposed on the offender and directed the Crown to fulfil
the right to information in sections 6 to 8 of the CVBR103.
Post-Sentencing
In terms of post-sentencing changes for the CCRA, in compliance with the CVBR’s right
to information, there is not much change since the emphasis on the disclosure of information to
victims regarding an offender’s release date, conditions, and location was already in place. What
is new is the requirement that the Commissioner must continue to disclose any changes to the
offender’s release104 and that the information can be given to a representative instead of to the
victim if the victim is not able to be present105. This recognizes that it may be financially difficult
for the victim to be present consistently. As well, there is now a section that allows for victimoffender mediation, should all parties agree to it106. This is a change that facilitates an attempt to
heal and repair on all sides, rather than solely pursue the traditional punitive approach of
100
R v Zadeh, 2015 BCPC 401, 2015 CarswellBC 3942.
Ibid at paras 54-56.
102
Ibid at para 70.
103
Ibid at para 90.
104
CCRA, s 26(1.2).
105
CCRA, s 26(5).
106
CCRA, s 26.1.
101
29
imprisonment. In terms of parole hearings, victims were already able to present an impact
statement regarding the harm they suffered, but now property damage is mentioned as being a
valid harm, not just physical or emotional harm. However, considering the types of more serious
offences which require parole hearings, this change will likely not substantially add to the
number of impact statements presented at parole hearings.
The ‘Rights’ in the CVBR
The rights that the CVBR purports to give to victims are not concrete or guaranteed. The
rights are subject to the discretion of appropriate authorities in the criminal justice system for
their consideration or approval. For example, a broad reading of the provisions under the right to
information may appear as if the information is freely given to the victim. However, the
provisions under the right to information are only that the victim should be given if the
information if he or she asks for it. The language in the CVBR notes that “[e]very victim has the
right, on request, to information about…”107 This means that the information does not have to be
given automatically in order to comply with the CVBR. Looking at the right to protection, the
provisions do not give a victim any sureties that they can use testimonial aids or have their
identity protected. The language of the CVBR states that a victim has “the right to request”108 for
these options but the requests could be denied. Similarly, the security and privacy provisions
state that the victim has the right to have these factors “considered by the appropriate authorities
in the criminal justice system”109. Lastly, for the right to restitution, the word ‘consider’ is used
again in the provision giving a right to have a court order restitution110. There is no surety that a
107
CVBR, s 6.
CVBR, ss 12, 13.
109
CVBR, ss 9, 11.
110
CVBR, s 16.
108
30
victim will be given a restitution order, but the victim has the right to have a judge consider
making it. A close reading of the provisions shows that the rights recognized by the CVBR are
just that – only recognized. It is recognized that these rights are important and should be upheld,
but they are only fulfilled subject to someone else’s approval. In this way, the rights are hollow.
Conclusion
While the CVBR and Bill C-32 are important steps toward the recognition of a victim’s
role in the criminal justice system, victims are still not a party in the Canadian criminal justice
system. It is true there were numerous amendments to legislation, however the amendments
seemed to be an expansion of definitions already included in the previous versions of the
legislation, rather than a new right or service. As discussed above, even the ‘rights’ given by the
CVBR are not guaranteed, but are rights only if victims proactively request for action or for
consideration of their views. All rights in the CVBR are still subject to the discretion of
appropriate authorities in the justice system. Furthermore, even if the rights in the CVBR are
denied or infringed, victims do not have any cause of action except to go to the complaints
department in the province or federal division.
Despite the lack of teeth in the CVBR and arguable lip service in giving rights to victim,
on the whole, having the CVBR is positive because of the public attention and concern for
victims’ interests. With this legislation, there is a unified response across the country about how
victims should be treated. Rather than a patchwork of services and rights provincially enforced, a
federal initiative ensures equal provisions for victims and prevents against misinformation.
The response to the CVBR from criminal justice professionals seems to be that it does not
change much for victims, especially in B.C. because of already existing legislation. Adept Crown
31
counsel were already keeping victims updated and informing them of plea negotiations.
However, there’s now this extra duty for them be able to show they have done this job to the
court. For the public, at least, sentiments about the CVBR seem to be the opposite. The public is
finally being informed of and understanding how strenuous, unnavigable, and sometimes
disappointing the criminal justice system can be. The CVBR can be the support for victims to be
able to speak up with some legal force, and perhaps to change how victims are involved in this
adversarial system. Rather than measuring effect through visible substantial or procedural
changes in the justice system, perhaps what should matter more is the what the new legislation
means for victims. If victims were ignored and shut out of the system before, then perhaps the
CVBR will provide comfort in knowing their voices will be heard and therefore ensure victims
are treated with courtesy, compassion and respect as mandated in the preamble.
32
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33
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