David Butt is a former prosecutor, now a criminal lawyer who regularly represents both accused persons and victims.
When I was a young prosecutor, my mentor told me if both the victim and defence lawyer are upset with your decision, you probably got it right. This tongue-in-cheek aphorism captures how most prosecutions are a high-stakes collision of intensely emotional, polarized perspectives on the same event. The aphorism’s wisdom is also revealed in reactions to the federal government’s proposed victims’ bill of rights. Both victims’ advocates and the defence bar have criticized it, both overstate their positions, and the criticism from both sides reveals the wisdom of taking the middle path.
Some defence lawyers call the bill “a hodge-podge of aspirational cant and window dressing”, arguing victims should never play a central role in the justice system. This argument is legally wrong, and potentially demeaning. Victims are at the core of every crime committed, why shouldn’t they be at the core of the societal response to crime? Systemic marginalization of a core stakeholder is unacceptable. Furthermore, our Supreme Court long ago made clear that the Charter rights of victims, which are different from accused persons’ Charter rights, are none the less equally important. So like it or not, victims are entitled to be at the core of the justice system.
In delivering health care we insist patients be treated like people, not silent disembodied illnesses. And this inclusive humane approach does not compromise either sound medicine or clinical objectivity. Applying that lesson, it is wrong to suggest we must choose between objective justice and compassion for victims. Any respectable justice system must aspire to treat all of its involuntary constituents, victims and accused persons, as whole people, deserving equal concern and respect, even while treating each very differently based on their different circumstances. This notion of asymmetrical equality is neither complicated nor controversial. Schools educate five and fifteen year olds very differently while still showing each equal concern and respect to both.
Doctors and prosecutors share certain limited but illustrative similarities. Both are detached experts, objectively making and implementing complex decisions. The decisions both make rarely have guaranteed outcomes, yet will profoundly affect the lives of patients or victims. So, just like doctors, prosecutors must integrate expert objective decision making with a compassionate, inclusive bedside manner that ensures a victim feels involved and respected throughout the process. That is the “aspirational cant” of the proposed victims’ bill of rights, and it is spot on.
Equally wide of the mark is criticism from some victim quarters that the proposed bill of rights sets up false expectations that lead to disillusionment, and therefore victims categorically should avoid the justice system for their own good. It is true that for crime victims already suffering searing physical and emotional pain, according an accused person a fair trial often feels like salt poured into their gaping wounds. But having represented countless victims over the years, experience teaches that victims’ needs and responses are highly variable. So we must not impose one construct of victim reality on everyone. We must engage with each victim individually. And for many victims, compassionate explanations of the justice system’s mysteries, and especially its shortcomings, coupled with inclusion and empowerment wherever it does not upset the delicate balance of the scales of justice, can dilute the salt and ease (not eliminate) the pain. So for many victims, conscientious adherence to the principles in the proposed bill of rights will make a profound difference.
Cross-examination is gruelling for victims, and our cherished standard of proof beyond a reasonable doubt means inevitably some will leave a wrenching criminal trial empty handed. The ever-present prospect of such disappointment only elevates the importance of engaging with victims as the proposed bill of rights mandates. Since trial outcomes are uncertain, explaining the process to victims becomes essential, so they appreciate the legal challenges prosecutors face, the efforts made to overcome those challenges, and why they sometimes fall short. A kindly doctor who patiently explains why medical interventions failed to save a loved one’s life cannot eliminate a family’s grief, but can soften it. The proposed bill of rights applies this wisdom to our justice system.
An excellent investigative piece in The Globe recently revealed that for sexual assault victims in particular, the courts are such dreadful places that vast numbers of sexual assaults go unreported. Thus anything we can do to foster increased victim engagement is welcome. That too is part of the “aspirational cant” of the proposed bill.
Criticism from both sides suggests the victims’ bill of rights walks a sensible middle line.