The Conservative government feared bringing trials "to a smoking, screeching halt" if crime victims were allowed to go to court to uphold their rights, Justice Minister Peter MacKay says.
The government's proposed Canadian Victims Bill of Rights, introduced in Parliament this week, is under attack as not being a bill of rights at all, because it does not give victims recourse to the courts when they feel their rights have been trampled on.
"I fail to see why these would be referred to as 'rights,'" said Marie Manikis, a law professor at McGill University who did a PhD on victim rights in England, Wales and the United States. "In contrast to the rights contained in the Charter of Rights and Freedoms, for instance, this document does not provide individuals with legally enforceable rights and remedies."
By contrast, the proposed victims bill creates internal complaint mechanisms for victims within federal agencies such as those responsible for parole and prisons. (There are already complaint mechanisms within provincial agencies.) It specifically says victims have no right to sue for violations of their rights.
Mr. MacKay, a former prosecutor in Nova Scotia, said consultations not only with victims but also with prosecutors, police, judges and Attorneys-General convinced him that allowing victims to have standing in court would be counterproductive.
"Taking that added step would counter-balance improvements to the system by slowing things down, by potentially having the system grind to a smoking, screeching halt in cases," he said in an interview. "There would be the very real possibility that a trial would be disrupted, that in fact it would cause further delay. That is already a complaint in the system."
The proposed bill contains language suggesting it is quasi-constitutional – meaning that if it comes into conflict with the provisions of other laws, it takes precedence (except over other quasi-constitutional laws such as the federal Human Rights Act). It contains four broad areas of rights: the right to information, protection, participation and restitution. All but restitution were already spelled out in a statement of principles approved by the federal and provincial governments in 2003 and 1985.
Mr. MacKay said he kept the promise he made in the fall that the rights bill would put victims at the heart of the justice system.
"There are entrenched rights for victims to now point to," he said. "There are remedies. It is a rebalancing of our entire system to have this entrenched in federal law."
He said the rights bill will be "an injection of adrenalin for victims to feel more included, that the system is more responsive, that they are in fact more respected by the system itself."
Prof. Manikis said the proposed rights bill contains new measures such as a community impact statement, in which an individual can tell a court how a crime harmed the wider community. But, she said, "The whole idea of not being tied down to real obligations allows a certain flexibility in the process, and maybe less accountability."
Lori Triano-Antidormi, a psychologist in Hamilton said the bill may create false hopes in victims about their right to participate in decisions; prosecutors and police retain their discretion over the choices they make. Victims, she said, "can convey their views and then become even more frustrated because the Crown has the final say."