Our justice system is failing so many Canadians that the majority of victims have stopped even reporting their victimization to police. There is a lot to be done, writes Benjamin Perrin.
By Benjamin Perrin, March 14, 2017
Federal Court Justice Robin Camp’s resignation after the Canadian Judicial Council recommended his removal from the bench sends a strong message: Victims of crime must be treated with respect and the criminal justice system must do far better at upholding their interests and rights. But it’s going to take a lot more to restore the trust of most victims.
While Justice Camp’s debacle is the most recent high-profile justice system catastrophe, it is not alone. Our justice system is failing far too many victims, the majority of which have literally given up on it by not even reporting their victimization to police.
With fewer than a third of criminal incidents reported to police and serious concerns raised about how police treat certain alleged offences that are reported, most of the crime happening in Canada is being suffered in silence with no accountability for alleged perpetrators.
Of those cases where charges are laid, more than 90 per cent result in plea agreements that the Supreme Court of Canada has ruled should only be disregarded in rare cases. Victims have no legal right to participate in secretive plea bargaining meetings or be consulted on them.
Most of the crime happening in Canada is being suffered in silence with no accountability for alleged perpetrators.
Across the country, charges as serious as murder and sexual assault are not even making it to plea bargaining because they are being stayed for “unreasonable delay.” The Alberta Crown Attorneys’ Association announced this month that more than 200 “significant, provable offences” have already been stayed in the province since the start of the year. It points to short-staffed Crown offices and new rules set by the Supreme Court of Canada in R. v. Jordan for the blame.
Of the fraction of cases that proceed to trial, victims find themselves in a system built upon the premise that the wrongs against them are really wrongs against “the state” – a fiction that has done great harm and is out of step with the recognition that victims have legal rights and legitimate interests.
“The criminal justice system is frequently experienced by victims as alienating, confusing, and stressful,” wrote a Nova Scotia provincial court judge recently. “Despite their intimate experience of harm and loss, victims have felt excluded, relegated to looking on as the case proceeds.”
In 2015, the Canadian Victims Bill of Rights was adopted with unanimous support from all political parties. It was a good start in recognizing victims have legal rights to information, protection, participation, restitution and remedies. Yet the inability of victims to generally enforce their rights is a stumbling block. They rely on judges, lawyers, police and other criminal justice practitioners to respect and implement their rights.
There are numerous measures that can be taken to improve the justice system’s response to victims of crime, starting with mandatory training for all judges, lawyers and police on existing law and rights of victims. Ignorance of the law is no excuse for accused criminals – it similarly can’t be for those charged with upholding it, either.
It will take a massive effort to regain the trust of victims of crime in our criminal justice system.
At the federal level, the Ombudsman for Victims of Crime needs the statutory authority to pursue victim complaints in Federal Court – just like the commissioners for official languages, privacy and access to information can do. The Criminal Code should be amended to provide for emergency peace bonds, to give victims a voice during bail hearings, to require victims of serious or violent offences be consulted as part of plea agreements, and to allow victims to make sentencing recommendations.
At the provincial and territorial level, there is a patchwork of uneven and inconsistent support for victims of crime. Nova Scotia, Newfoundland and Labrador, Yukon, the Northwest Territories and Nunavut lack comprehensive victim compensation programs. Quebec and New Brunswick don’t provide emergency protection orders for victims of domestic violence. These gaps need to be filled. Provincial governments also need to appoint an ombudsperson to receive and effectively address victim complaints, in court if necessary. They should also designate a public authority to enforce restitution orders in favour of victims and expand restorative justice programs.
It will take a massive effort to regain the trust of victims of crime in our criminal justice system. Those who are responsible for our justice system and run it who aren’t up to the task should join Justice Camp on the unemployment line.
Benjamin Perrin is a law professor at the University of British Columbia and the author of Victim Law: The Law of Victims of Crime in Canada.