The Conservative government is seeking to give victims of crime a more active role in the legal process.
A bill will be put forward this fall that extends victim involvement “from the time of the offence to the final disposition of the sentence,” Justice Minister Peter MacKay said in an exclusive interview with The Globe and Mail. A new victims’ bill of rights would attempt to include them “at all levels and at all points in the process.”
It would put “victims in a better place, their more rightful place, which is at the heart of the system,” he said. “They’re not just another Crown witness. They want a more effective voice.”
In June, Canada’s Ombudsman for Victims of Crime, Sue O’Sullivan, suggested giving victims the right to a speaking role in the plea-bargaining process – a system already in place in Arizona. Mr. MacKay would not say whether this would be part of his bill. What he did say was that it would have substantive and wide-ranging meaning for victims.
The move to give them a bigger say is part of the government’s broader tough-on-crime agenda. The victims’ bill of rights was telegraphed in Thursday’s Speech from the Throne, but was sparse on details. Among its other plans are a cyberbullying law, lifelong sentences and a public sex-offender registry, all of which are without precedent in Canada.
The cyberbullying law would directly criminalize the non-consensual online sharing of intimate images, Mr. MacKay said. And Prime Minister Stephen Harper last month said the government would for the first time seek to give the public access to names in a national sex-offender registry.
In another break with Canadian law, at least since Canada abolished capital punishment in 1976, is a proposed punishment of life behind bars, which Mr. MacKay says would be reserved for the “very high end of the worst offenders in society.” Life without parole is in place in 49 states – Alaska doesn’t have it – and in federal jurisdiction in the United States. Nearly 50,000 prisoners are serving this sentence in that country, including nearly 2,000 sentenced as juveniles.
The new bills would need to be debated, given detailed study in committee and approved by Parliament before becoming law.
Ms. O’Sullivan in June urged an “active role for victims in the plea-negotiation process,” though without a veto. That would include entrenching the right to publicly address the court in written or oral form before a decision is made on a plea arrangement. A less dramatic change would be simply to require Crown attorneys to consult victims in the plea-bargain process, as Manitoba already requires them to do. But that would leave victims with a largely passive, muted role.
Plea bargains are a “shadowy and problematic area,” recently retired University of Manitoba law professor Anne McGillivray has said, because the narrative of a case may be distorted when it reaches a judge, and the true severity may not be reflected in the sentence. Her comments are cited by the federal justice department in a website discussion of four models for victim participation in plea bargains.
William Trudell, chair of the Canadian Council of Criminal Defence Lawyers, said giving victims a role in plea deals would give them a standing akin to the two parties in the case – the state and the accused. “What right does any witness have to voice that type of opinion as to how the criminal justice system works?” he asked. “That’s not their role.”
He said Crown attorneys would be concerned by such a proposal. “Often victims who are suffering pain will seek revenge. The Crown has to be able to make the decision on the big picture – what’s just for the accused and society as a whole.”
On life behind bars, Mr. MacKay said he is reviewing options to ensure that “a life sentence actually means life. It’s in keeping with previous efforts that we’ve made to bring about truth in sentencing.” The government’s Truth in Sentencing Act, which took effect in 2010, ended the customary practice of giving offenders two days of credit for each day served before trial.
That builds on earlier steps in which the Conservative government removed the faint-hope clause that gave first-degree murderers a shot at early parole after 15 years in jail, and allowed the minimum parole-eligibility period of 25 years for first-degree murder to be stacked, one on top of another, for multiple murders.
Last month, an Edmonton man, Travis Baumgartner, was given a parole eligibility of 40 years when he pleaded guilty to three murders. “He received the highest sentence since the 1960s for killing three people in cold blood,” Mr. MacKay said.
Life without a chance at parole would almost certainly be challenged under the constitution for denying offenders the chance at a review of whether they are still dangerous.
“I don't think there is, as yet, any constitutional requirement for periodic review of a life sentence imposed for murder or an act of terrorism,” University of Toronto law professor Hamish Stewart said. But if “the justification is dangerousness, then the constitutional argument for periodic review, where the offender could attempt to show that he was no longer dangerous, would be strong, because continued detention of a person who was no longer dangerous would not serve the purpose of the rule.”