Saturday, January 24, 2009

What about victims rights?

We've had the Canadian Charter of Rights and Freedoms now for 27 years and it has been for the most part very successful. While we may gripe from time to time about the political effect and whether courts should always be picking their noses into legislative actions, there is no doubt that this is a different and better country. The advances in rights for the elderly, children, the disabled and homosexuals -- as well as better protections for illegal immigrants facing deportation -- are just a few examples.

Yet there is a glaring fact that while the Charter defines legal rights for suspects (individuals as well as corporations) there is none whatsoever for the victims of crime. Whether people have been deprived of a loved one or defrauded out of their life savings, there is often no forum for victims to speak their minds -- it is solely at the discretion of the Crown attorneys and the courts.

That is not to say that crime victims should have the right to overturn plea bargains or obstruct the course of justice. But their rights need to be recognized as being equal to those of who victimized them. The only way one can reasonably do this, is via a constitutional amendment.

More than a year ago, I sent a letter to PMS addressing this very issue and suggesting Parliament at least have a debate on the issue. As usual with anything that doesn't fit his very narrow agenda, even something that would be in general agreement with his law and order approach, I have gotten nothing but silence.

So I'm putting forward the idea right here, on my board. Here is roughly what I would include in such an amendment:

Victims Rights

14.1 (1) Victims of crimes of violence and other criminal and quasi-criminal acts that Parliament and the provinces may define by law pursuant to subsection 3, shall have the rights to notice of and not to be excluded from all public proceedings relating to the crime; to be heard if present and to submit a statement at a public pre-trial or trial proceeding to determine a release from custody, an acceptance of a negotiated plea, or a sentence; to these rights at a parole proceeding to the extent they are afforded to the convicted offender; to notice of a release pursuant to a public or parole proceeding or an escape; to a final disposition free from unreasonable delay; to an order of restitution from the convicted offender; to have the safety of the victim considered in determining a release from custody; and to notice of the rights established by this section.
(2) The victim shall have standing to assert the rights established by this section; however, nothing in this section shall provide grounds for the victim to challenge a charging decision or a conviction, obtain a stay of trial, or compel a new trial; nor shall anything in this article give rise to a claim for damages against Canada, a province, a political subdivision, or a public official; nor shall anything in this section provide grounds for the accused or convicted offender to obtain any form of relief.
(3) Parliament, and the provinces and territories, shall have concurrently the power to enforce this section within their respective federal and provincial jurisdictions by appropriate legislation, including the power to enact exceptions when required for compelling reasons of public safety.
(4) The rights established by this section shall be applicable to all proceedings occurring after ratification of this section.
(5) The rights established by this section shall apply in all federal, provincial and territorial, military, and juvenile justice proceedings, and shall also apply to victims of those persons outside Canada who may have had a act committed against them by a Canadian citizen or a person having the status of a legal immigrant or a legal refugee; acting in official capacity and commiting an act considered criminal under Canadian or international law or deemed criminal according to the general principles of law considered criminal by the community of nations.

What do you think about this? Give me your thoughts.

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James Bowie said...

Very creative.

Perhaps your idea of the restitution order creeps a bit close to the domain of the civil justice system?

BlastFurnace said...

Restitution should always be available as an alternative, if the criminal is truly repentant and if the type of restitution acts as a deterrent.

My point is that victims of crime should have a voice in both the civil and criminal streams and most often they don't in the latter.