Reflections on the Victims Bill of Rights by A. Daub (UOttawa LLM Program)

The rights of the victim have been a hot topic of discussion in criminal law, but rarely are victims afforded participation or protection in a beneficial way within the criminal justice system. Sure, there have been numerous legislative enactments in an attempt to ensure that victims have rights within the system, but it is difficult to say whether these enactments are being utilized to their full potential. In 2015 the Victims Bill of Rights (VBR) was enacted with the intention of providing victims with legislated rights. Introducing an Act that legislates the victims rights allows for victims to feel as though their ‘rights’ are protected, as are the due process rights of the accused. The goals of the VBR were, more or less, to improve the victims ‘customer service’ and to reinforce their trust in the system. Historically, victims have been left out of criminal proceedings, because the crimes committed against them were seen as being committed against the state rather than against the individual. The VBR allows victims to participate in the process in a meaningful way and see themselves as being a productive individual within the process. The rationale for improving the quality of customer service was meant to encourage sympathy towards victims as well as ensure that victims are being valued for their participation within the system. By allowing victims the opportunity to emote, and do so publicly as a part of the system, it instills the victim’s confidence in the justice system. This semblance of being heard and respected leads victims to them leave as ‘happy customers’.

The Ombudsman for Victims of Crime completed a review of the 2015 Victims Bill of Rights. They were interested in seeing how the administration of the bill had worked in practice. Overall, the Ombudsman was disappointed with the implementation of the Act. While this is a federal Act it is up to the provinces to implement the rights afforded by the Act. There are numerous concerns surrounding the VBR, namely that the Act does not clearly define the roles and responsibilities for the actors of the Criminal justice system. The Act had no enforcement or allowance for legal action and the mechanism for complaints is messy and disorganized. These were the main criticisms, listed alongside a number of less serious concerns and suggestions. One of the first issues noted by the Ombudsman was a severe lack of data collection from most jurisdictions responsible for the administration of the VBR. With a lack of data, it was impossible to make recommendations on how victim participation is being implemented and to what level of success.

Section 6 of the VBR states that victims have the right, on request, to receive information about their case. The Ombudsman has argued it is inefficient for the government to require the victims reach out in order to receive information regarding the case in which they are involved. The Ombudsman put forward the suggestion to amend this section to ensure that all victims are automatically provided with information about their case. The requirement that victims must be the ones to reach out may lead to equity issues. For example, those of a lower socioeconomic status may be less likely aware of their rights as well as their ability to exercise them. The suggestion to provide all victims with information about the case in which they are involved allows for those who may not reach out with information. However, it should be considered that the criminal justice professional tasked with the initial provision of information make it explicitly clear that there is an opt-out option, ideally for every step in the process. Affording the victims the ability to opt-out of the provision of information allows them to have control over what is provided to them.

Under section 25(2), the Ombudsman made the suggestion to have their own office be the single authority to review the complaints of victims. One very real issue with the Ombudsman being responsible for reviewing complaints submitted by victims involves the impartiality to do so. This practice was considered in England and Wales for the Code of Practice for Victims of Crime as they intended to have a Victims Ombudsman to hold the roles of championing the rights of victims and resolving complaints that arise between victims and criminal justice agencies. The reason this was deemed insufficient was that impartiality could not be assured. While the current review systems have not sufficiently addressed the complaints of victims, it would be inappropriate for the Ombudsman to take on this task alone. The office tasked with reviewing complaints should not only have a sufficient knowledge of the organizational functions of the system but there also needs to be a sufficient level of reviewer impartiality.

Another concern addressed by the Ombudsman was that sections 27, 28 and 29 of the VBR deny victims any legal standing. This prevents victims from being able to appeal to the courts to review rights that are not being upheld by the system. The Ombudsman suggested that the Act should provide victims with a mechanism of judicial review and an administrative right to review decisions not to prosecute. By refusing the victims legal standing this removes any accountability of the criminal justice agencies. As mentioned in the previous section, complaints are already not being addressed to the satisfaction of the victims and current complaint mechanisms are not as efficient because they are not binding. Providing victims with legal standing to bring their concerns to the court will allow further protections to their rights.

Section 20 ensures that the Act is applied in a way that does not interfere with administration of justice. The Ombudsman raised this section as a concern as it does not assign specific duties to specific actors within the criminal justice system. Without having assigned duties, it is not possible to determine where the rights of the victims are not being upheld. The interpretation clause of section 20 states that “the victims rights provisions in the Act must be construed and applied in a manner that does not interfere with the discretion of any official in the criminal justice system in Canada”. The Ombudsman found this clause to be problematic because rather than focussing the efforts on protecting the rights of the victim, this clause illustrates that the victims are more a ‘burden’ to the criminal justice professionals than they are individuals with rights to be respected. The suggested amendment was to ensure that the Act is interpreted in a way that criminal justice professionals acknowledge the human rights of the victims in the administration of justice.

With victims rights and inclusion of victims within the criminal justice system being relatively new, it is essential that their rights are being protected and enforced. The suggested amendments by the Ombudsman are, for the most part, valid and constructive. However, there are some suggested amendments that should proceed with caution. No piece of legislation is perfect, nor are the suggested amendments to the legislation.

References

"Progress Report: The Canadian Victims Bill of Rights", (2021), online: Victimsfirstgcca <https://www.victimsfirst.gc.ca/res/pub/prcvbr-reccdv/index.html>.

Manikis, Marie, The Difficult Road to Accountability: A Study on Complaints Mechanisms to Investigate and Address Victims’ Rights Violations (May 16, 2017). in J. Desrosiers, M-E. Sylvestre and M. Garcia, Criminal Law Reform in Canada: Challenges and Possibilities (Yvon Blais, 2017)., Available at SSRN: https://ssrn.com/abstract=3627997