Victims Bill of Rights confers few new “rights” but weakens protections for accused

Posted on April 11, 2014 in Child & Family Policy Context – Opinion/Editorials – Under the guise of ministering to victims of crime, Stephen Harper’s new Victims Bill of Rights undermines defendants’ age-old rights.
Apr 11 2014.   Editorial

There’s a term for Prime Minister Stephen Harper’s so-called Victims Bill of Rights. It’s called “placebo policy.”

For the most part the Conservative government’s latest tough-on-crime initiative, rolled out to much fanfare a week ago, is calculated to make the victims of crime feel better without actually giving them substantially more say in the justice system than they already have. To that extent it’s a bit of a sugar pill, nothing more.

Unfortunately, there is more to Dr. Harper’s remedy and it isn’t healthy. It takes a run at Canada’s justice system by eroding defendants’ age-old rights under common law. That’s a problem Parliament needs to address as it studies this bill.

On the cosmetic side, Bill C-32 is innocuous enough. Victims will be treated with “respect and fairness,” Harper promises. They’ll have a “right” to more information about cases, including prosecution and sentencing. To have their privacy and security safeguarded. To provide more input and victim impact statements. And to have courts consider making restitution orders. But for the most part, Ottawa is just codifying and standardizing existing good practices that the justice system has long used. The bill of “rights” is more guideline than rule book.

Yet for all that the bill has worrisome provisions — particularly affecting anonymous testimony and spousal privilege — that have less to do with empowering victims than with making life harder for anyone accused of a crime. Parliament needs to take a critical look at this.

Anonymous testimony. As the Star’s Tom Walkom has pointed out, the bill amends the Criminal Code to give judges extraordinary powers to let witnesses testify anonymously. Their identities can be shielded from the accused and his or her lawyers, as well as from the public, if “the witness needs the order for their security or to protect them from intimidation or retaliation,” or to “protect the security of anyone known to the witness,” or to encourage victims and witnesses to come forward.

This goes well beyond the common, limited practice of granting police agents and informants anonymity, or of issuing publication bans that prevent the media from publishing witnesses’ names or other trial details.

Indeed it may well infringe a defendant’s constitutionally protected rights. It appears to fly in the face of a landmark Supreme Court ruling in 1991 that requires prosecutors to disclose all pertinent information to defendants, including the names of prospective witnesses. As well, it appears to undermine the age-old common-law right of an accused person to know who his accuser is.

Spousal privilege. The bill amends the Canada Evidence Act to do away with another age-old principle, that husband and wife can’t be forced to testify against each other except in specific cases such as sexual assault or crimes against youngsters. The Supreme Court upheld that exemption, too, in 2007. (Though spouses would no longer be protected from subpoena under the new bill, they’d still have the limited right to refuse to disclose any communication made in the confines of the marriage.)

Given the value of maintaining harmony in the home, Parliament should be cautious about forcing spouses to testify against each other even in the cases of murder, terrorism or fraud that the government likes to cite. What if a defendant is found innocent after a spouse is compelled to testify? How might that affect a marriage, family, children? How might the prospects for keeping a marriage going be affected once a convicted spouse had paid his or her debt to society? The spousal privilege wasn’t invented by criminal-coddlers. It shields the family. Serious thought must be given to doing away with it.

Giving victims a bit more standing in the judicial system is one thing. Shortchanging the accused is another. Parliament should unbundle this package and only retain the measures that genuinely help victims.

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