The federal government recently presented in Parliament the long-awaited Victims Bill of Rights, which was promised during multiple occasions, including the Throne Speech. Before its release, the Justice Minister used very powerful terms, suggesting that this would be a "comprehensive package of legislative reforms never before seen in our country's history" and that "the government doesn't want them to be just another Crown witness, but an effective voice".
Although procedural and evidentiary reforms are suggested as part of the Evidence Act and the Criminal Code, the 'Canadian Victims Bill of Rights' portion of this document fails to meet promises of groundbreaking changes towards a victims' rights culture and re-establishes merely good practice standards for criminal justice agencies.
Indeed, in cases where the 'rights' listed in this document are breached by federal criminal justice agencies, it is made perfectly clear that no legal action, appeal or any form of damages can be provided under this Act.
Professionals working in the area of victims' rights cannot read these words without being reminded of the Ontario court decision in Vanscoy. In this decision, victims in two separate cases brought an action before the Ontario Court claiming that their 'rights' under the Ontario Victims' Bill of Rights were breached after the Crown proceeded with pleas over their objection. The court stated that the exculpatory language that specifically provides that no new cause of action or appeal would arise from any breaches clearly and unequivocally made clear that the legislature did not intend to provide any substantive statutory rights to victims. Indeed, it highlighted that "The act is a statement of principle and social policy, beguilingly clothed in the language of legislation. It does not establish any statutory rights for the victims of crime."
Indeed, the government's proposed Victims Bill of Rights can be considered as listing principles of good practice rather than enforceable legal rights. In addition, it is also made clear that the status of victims in proceedings does not change and therefore victims cannot claim to be parties, intervenors or observers based on this proposed law. With such clear and explicit terms, one fails to see why this Act is called a Victims Bill of Rights.
As a form of remedy for breaches, this Act highlights that every federal criminal justice agency must have a complaints mechanism to review complaints and provide recommendations in relation to these alleged breaches. Although this mechanism can be useful as a first step of action in cases of breaches, its limitations are clear since at this stage, the complaint remains within the same agency in breach and fails to provide victims with a more removed and independent process to assess breaches and provide remedies.
Further, in cases of dissatisfaction with the outcome of this internal process, an unclear provision suggests that victims can file a complaint with "any authority that has jurisdiction to review complaints in relation to that department…". The unfortunate vagueness of this provision does nothing to facilitate victim navigation through this complaints process. Instead, an authority like the Federal Victims' Ombudsman – which is already in place and little known to victims – should have explicitly been mentioned. Although this would not have created new remedies, since this federal body already has jurisdiction to hear complaints in cases of victim dissatisfaction and recommend limited remedies to federal criminal justice agencies in breach, the government could have seized this opportunity to remind victims that this body exists. Finally, it is worth highlighting that since the Federal Victims' Ombudsman's investigatory and remedial powers have not been expanded, this proposed Bill of Rights does not add anything new to existing remedies.
In conclusion, the terminology of 'rights' employed throughout this proposed Bill is unfortunate and can create further confusion and unrealistic expectations for victims of crime. If the intention is not to provide legally enforceable rights or any new enforcement mechanisms for victims, the government would gain credibility by removing the charged terminology of 'rights' and avoiding deceiving victims as highlighted in Vanscoy.
Marie Manikis is a law professor at McGill University