Part II: Participatory Rights

Throughout the 1980s, victim participation in the Canadian criminal process was significantly enhanced through three different mechanisms. First, there was, and continues to be, a gradual and systematic effort to make the trial process more responsive to victims of violence by removing archaic procedural and evidentiary rules which contributed to the secondary victimization experienced by victims who appear as witnesses at trial. Second, in 1988, the victim impact statement was given statutory recognition, thus providing the victim with a voice at the sentencing hearing.

The enactment of Victims’ Bills of Rights in virtually every American and Canadian jurisdiction has been the third mechanism employed to enhance victim participation. It has proven to be the most controversial and the most ineffective mechanism largely due to its ambitious breadth, its indeterminacy and its failure to support the regime of rights it provides with meaningful remedial provisions.

By the end of the millennium, law-makers around the world had embraced victims’ rights in principle and, as such, the question moving into this century shifted to one of exploring implementation of the principle. In 1999, Professor Tobolowsky wrote:

the relevant inquiry is no longer whether victims should have participatory rights in the criminal justice process. The incredibly rapid adoption of constitutional and legislative victim rights provisions over the last fifteen years ensures that victims will have a participatory role in the criminal justice process.” (Tobolowsky 1999:103)

Nature and Scope of Participatory Rights

Participation is intrinsically valuable. The perception of some degree of control empowers and strengthens the individual. It is clear that providing crime victims with some degree of control and autonomy is an important first step in the healing process. Victim participation is the first step in regaining self-esteem lost as a result of criminal victimization.

Participatory rights can take on an active or passive role:

Victim initiatives can be divided into passive as well as active forms of participation. Passive forms include the right to receive information and mechanisms that enable victim inclusion as a passive receptor of services. More active forms of participation include victim consultation, providing information, and more recently victims taking on the role of agents of accountability (Manikis 2019a:202).

Whether active or passive, the nature of participatory rights for victims share much in common with the due process rights afforded to the accused. It is arguable that some of the participatory rights, such as notification and consultation, have a constitutional underpinning. Section 7 of the Charter guarantees fundamental justice for “everyone” if the law impairs the person’s life, liberty and security. In light of our understanding of the phenomena of secondary victimization, the failure to notify a victim of the date of trial, or the failure to notify and consult with them regarding resolution of the case, is arguably an impairment of the security rights of the victim.

However, in 1999, the Ontario Superior Court rejected the notion that participatory rights can, and should, be elevated to the status of constitutional rights, stating that:

Could it be said that a victim’s right to be informed is vital or fundamental to our societal notion of justice? I do not see the law going that far. It is a laudable idea, but it is not vital or fundamental in the manner of a principle such as the presumption of innocence or the right to counsel. (Vanscoy v. Ontario 1999:37)

Although no further attempts have been made in court to elevate participatory rights to the level of Charter rights since this decision, a fulsome debate has emerged in Canada and the United States about enacting a constitutional amendment to protect victims’ right (Roach 2005; Young 2005; Manikis 2010a; Paciocco 2005; Beloof et al. 2018; Cassell 2012; Twist & Seiden 2012; Browne 2004). In Canada, the debate never led to any serious proposals to embark on a path of amending the Constitution, and in the United States, there were numerous proposals for an amendment, which had the support of various Presidents, but all failed with the last attempt being made in 2015 (Cassell 2011; 2012; Twist & Seiden 2012). However, 35 states have enshrined victims’ participatory rights in their Constitution (up from 29 states since the writing of the 2001 report).

In terms of constitutional amendments at the state level, 11 states have adopted “Marsy’s Law,” which refers to a 2008 amendment to the Constitution of California to expand the scope of victims participatory rights with a corresponding right to seek enforcement of these rights in court (Beloof et al. 2018; Cassell & Garvin 2020). Similar to the Marsy’s Law constitutional amendments, the Crime Victims’ Rights Act (“CVRA”) was enacted into federal law in 2004 and this statute provides victims with standing to seek enforcement of participatory rights in federal court. It has been suggested that the United States is currently undergoing a “new wave” in terms of the nature and scope of victims’ rights:

…a new wave of victims’ rights amendments has been enacted over roughly the last decade, expanding the rights promised to victims and ensuring that those rights can be enforced, even by the victims. These new amendments draw on lessons learned over the last several decades regarding the scope, structure, and articulation of rights necessary to make crime victims’ rights meaningful. Oregon modified its constitution in 2008 to remove express hurdles to rights enforcement. That same year, California adopted the first Marsy’s Law. Since then, similar Marsy’s Law amendments were added to the state constitutions of Illinois in 2014, North Dakota and South Dakota in 2016, Ohio in 2017, and Florida, Georgia, Nevada, North Carolina, and Oklahoma in November 2018. (Cassell & Garvin 2020:101) (note: since the writing of this article, Marsy’s Law was also adopted in Wisconsin (2020)).

The issue of enforceability of rights will be discussed at the end of this Part; however, it must be noted that the most significant difference between the nature of participatory rights in Canada and the United States lies in enforceability. Both jurisdictions contain a similar, if not, identical set and scope of rights, but the mechanisms for enforcing these rights in Canada are largely toothless or non-existent.

Putting aside statutory protections for victims in the Criminal Code, participatory rights for victims in Canada can also be found in the provincial Bills of Rights, but none of these statutory regimes authorize seeking enforcement in court. In fact, most of the statutes specifically direct that the violation of a right does not give rise to a cause of action. In 1999, two victims launched a constitutional challenge to the Ontario statutory bar on seeking judicial relief on the basis that a legislature cannot constitutionally create a right with a remedy. Surprisingly, the court dismissed the challenge by calling into question whether the provincial laws actually create a right for the victim:

“the legislature did not intend for s.2(1) of the Victims’ Bill of Rights to provide rights to the victims of crime...The Act articulates a number of principles, whose strength is limited not only by precatory language, but also by a myriad of other factors falling within the broad rubrics of availability of resources, reasonableness in the circumstances, consistency with the law and public interest, and the need to ensure a speedy resolution of the proceedings. Finally, even if there was an indefensible breach of these principles, the legislation expressly precludes any remedy for the alleged wrong. While the Applicants may be disappointed by the legislature’s efforts, they have no claim before the courts because of it.” (Vanscoy v. Ontario 1999:21, 41)

This conclusion has been echoed in two recent cases out of Saskatchewan (R. v. F.(R.D.) 2016; R. v. Hitchings 2016). So after two decades there still remains ambiguity about the nature of participatory rights – it remains unclear whether victims’ rights should be seen as equivalent to constitutional rights, and it remains unclear whether the statutory rights found in all of the provincial Bills of Rights can even be called and considered rights at all.

The Uniform and Universal Legal Framework

 For the most part, victims’ rights reforms around the world are remarkably uniform. Of course, there are variations on the theme, but putting aside the unique “adhesion” procedures in most European countries (a process whereby the victim becomes a secondary prosecutor in the criminal process), many jurisdictions have adopted some form of victims’ rights model which includes compensation schemes, victim assistance programs, and/or participatory rights through victim impact statements and victims’ Bills of Rights.

The reason why victim law reform has taken similar forms around the world is due to the fact that most of the reform was predicated upon the 1985 United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (a document co-sponsored by Canada). Further uniformity was achieved in Europe with the passage of the 1983 European Convention on the Compensation of Victims of Violent Crime and the 1985 Recommendation R(85) (The Position of the Victim in the Framework of Criminal Law and Procedure) of the Committee of Ministers of the Council of Europe (Muller-Rappard 1990).

There have been no changes to the European Convention since 2001, and there are now a total of 26 ratifications. However, in 2001 the Council of the European Union adopted the Framework Decision on the Standing of Victims in Criminal Proceedings (2001/220/JHA). This Framework was lauded as a “milestone” for victims in the EU because it was the first “hard-law instrument” at the supranational level (Groenjuijsen & Pemberton 2009; Kucuktasdemir 2016). It set out minimum standards for the treatment of victims of crime (including the right to be heard, informational components, the opportunity to participate, compensation, protection and victim support), though member states had considerable discretion as to how those rights should be implemented.

In reports prepared in 2004 and 2009 respectively, the European Commission found that the objectives of the Framework Decision were not being achieved due to wide disparity in national laws as well as the frequent use of non-binding instruments to implement such rights (e.g. guidelines and recommendations) (Buczma 2013). The Commission also noted that the Framework did not go far enough to protect victims’ rights (Gavrielides 2017).

As a result of the European Commission’s findings, and after consultation with member states, the EU Directive on Victims’ Rights was adopted in 2012, replacing the 2001 Framework Decision. This Directive addressed all of the rights in the Framework Decision but in a more comprehensive and detailed manner (Kucuktasdemir 2016; Buczma 2013), as well as created a new right of review for when a prosecutor chooses not to prosecute (Buczma 2013). It has been noted that there is no European instrument quite like this one, as it imposes “such a vast and comprehensive obligation [on member states] to establish common minimum rights related to victims of crime” (ibid:236).

In Canada, in recognition of the United Nations Declaration of Basic Principles of Justice for Victims of Crime, federal, provincial and territorial Ministers Responsible for Criminal Justice and Public Safety put forth a policy statement in 1988 enumerating principles to guide Canadian society in promoting access to justice, fair treatment and provision of assistance for victims of crime. These principles were incorporated, with some variations, into the provincial and territorial Bills of Rights. The policy statement was revised in 2003, and most of the underlying themes from the 1988 statement – such as victim privacy, compassion and respect for victims, information about the process and programs for victims of crime, and the safety of victims – have been incorporated into the 2003 Basic Principles (See Appendix “A” for the 1988 and 2003 Statements of Principles). However, some of the bolder language choices in the 1988 statement can no longer be found in the 2003 version. For example, there is no mention of prompt and fair redress for victims in the new statement. Similarly, whereas there was specific reference made to enhanced training to sensitize criminal justice personnel in 1988, the new statement simply states that victims’ needs and concerns should be considered when programs and training practices are created.

As law and policy reform around the world has been modelled on the terms and conditions of the 1985 U.N. Declaration, there is a great deal of uniformity in the approach taken across jurisdictions to date. In recent years, some American jurisdictions have expanded the scope of the U.N. Declaration with their adoption of “Marsy’s Law” constitutional amendments to make participatory rights enforceable by the victim. Canada has not gone this far but the last two decades has seen a number of significant developments at the federal level.

2015 Canadian Victims Bill of Rights

Provincial Bills of Rights have been in place for three decades, but the Canadian Victims Bill of Rights (“CVBR”) did not come into force until July 23, 2015 (S.C. 2015, c. 13). This Act focuses on four basic principles: a) the right to information; b) the right to protection; c) the right to participation; and d) the right to seek restitution. Many of the principles noted in the 2003 Canadian Statement of Basic Principles have been incorporated into the CVBR. However, some of the principles which are notably omitted include: a) reasonable measures should be taken to minimize inconvenience to victims; and b) the needs, concerns and diversity of victims should be considered in the development and delivery of programs and services (including education and training).

The CVBR affords victims a “right” to convey their views about criminal justice decisions that may impact their rights and it mandates that these views be considered by authorities. However, the Act both explicitly and implicitly creates limitations on complaints/reviews of violations. As in the provincial Bills of Rights, the CVBR explicitly states that a violation of any right does not give rise to a new cause of action, a right to damages or a right of appeal. It further notes that nothing in the Act should be construed as “granting to, or removing from any victim” standing.

The Office of the Ombudsman for Victims of Crime was established to serve as a complaints review process for infringements by federal agencies (though most federal agencies have their own internal review process in place), but, no obligation was imposed on provincial agencies, who are responsible for the administration of criminal justice, to create a complaint process. For victims who feel that their rights have been infringed or denied by a provincial body, their only option is to “file a complaint in accordance with the laws” of that province (which, as will be discussed, do not have effective complaint processes).

In five short years, the CVBR has been cited in over 80 cases. Admittedly, many of the citations are of little substantive value other than making a passing note that the interests of the victim must be considered; however, in 30 cases, the legislation impacted a decision in favour of the victim in various different ways including: preventing the release of sensitive exhibits to media (R. v. Arfmann 2020); protection of private text messages and photographs (R. v. C.C. 2019; R. v. GSK 2019); ensuring that victim apprised of court dates (R. v. Norwack 2019); protecting victim from unwanted intrusion by investigator for accused (R. v. Downey 2019); allowing family members to provide a victim impact statement on the victim’s behalf (R. v. Kaliugavarathan 2017; R. v. Thompson 2017; R. v. Darby 2016); and allowing a support dog as a testimonial aid (R. v. W.(C.) 2016). In 2020, the Supreme Court of Canada also cited the CVBR in criticizing a sentencing judge for not permitting the mother of a victim to provide a victim impact statement (R. v. Friesen 2020).

Despite the limited scope of the federal law, the enactment of this statute has been seen as a significant step forward:

Further, Bill C-32 marks a sea change in the law. It is the first time in Canadian history that victims’ rights have been comprehensively set out in federal legislation. It represents a significant shift in the conversation; no longer are victims’ rights purely symbolic social policy that can be easily ignored or outright dismissed in criminal proceedings….Rather, it is about enhancing the rights of victims throughout the many stages of the criminal process. The codification of administrative rights for victims and the creation of national standards designed to ensure that victims are treated with courtesy, compassion and respect throughout the process is a positive and significant step forward. At a minimum, it will serve as the cornerstone for ensuring that the Charter rights of all persons are respected in criminal proceedings. (Barrett 2001 [updated in 2019]:1-17)

The Canadian Victims Bill of Rights is a significant development for victims of crime in Canada. The rights that it recognizes are extensive and the fact that it takes primacy over general legislation makes its impact potentially very powerful. It affords victims the opportunity to have a more meaningful voice in the criminal justice system, greater information, enhanced consideration of their security and greater consideration to receive restitution. (Perrin 2017:47).

Provincial Bills of Rights 

(see Appendix “B” for a list of relevant Provincial statutes)

These provincial enactments have been in existence for close to thirty years, but it remains unclear whether they have any significant practical impact in light of the obvious shortcoming of failing to create a process for enforcement of the enumerated rights. Despite this shortcoming, the legislation has continued to be developed and expanded upon since the 2001 report. The similarities among the various provincial regimes far outweigh the differences, and the core similarities all relate to the principle of treating the victim with respect and dignity, and the obligation to keep the victim informed with respect to the nature and timing of court proceedings. There are some unique provisions showing that there is considerable provincial variation and inconsistency, and in seeing the following list of variations, it becomes clear that there are many different aspects of the criminal process which need to be addressed to give effect to participatory rights.     

Some of these unique differences are rather significant (e.g., the failure of 11 provinces/territories to address the need for legal representation and the failure of 10 provinces/territories to address any form of remedial relief) but many of the differences appear to be mere variations on a theme or simple drafting distinctions. For example, the large majority of provincial statutes stipulate that protection of the victim from intimidation is a basic principle, but only Manitoba (s. 18), British Columbia (s. 8(f)) and Nova Scotia (s. 3(2)(c)) give specificity to the principle by stipulating that victims should be accommodated within the court by the provision of special waiting rooms separate and apart from areas accessible to the accused and witnesses.

The integration of the victim in the criminal process through the mechanism of Bills of Rights falls short of providing the victim with any degree of procedural control. Six provincial regimes (AB s. 2(1)(i); NB. s. 9; NL s. 8(3); PEI s. 2(e); QC s. 3(4); SK s. 2.1(h)) limit victims’ input to a statutory direction that their views “should” be considered, and Ontario, British Columbia and Nova Scotia remain silent with respect to this simple direction. Moreover, two of the territories (NT s. 5(e); NU s. 5(e)) simply state that the Victim Assistance Committee must promote assistance to victims so that they can provide such input.

Only Manitoba (s. 14) appears to establish a legal obligation on the Director of Prosecutions to ensure that the victim is given an opportunity “provide his or her views” on critical prosecutorial decisions, though the Yukon (s. 5) has also noted that “victims have the right to have their views, concerns and representations considered at any stage of the criminal justice process where the law provides for this possibility.” The current thrust of participatory rights has been limited to keeping the victim apprised of the progress of the case, to explaining the process to the victim, to informing the victim of available welfare services and to permitting attendance at trial for the victim. The controversial question remains whether or not these rights should also entail participation in prosecutorial decision-making. For the most part, all jurisdictions stop short of providing the victim with a “veto” or final say respecting prosecutorial decisions (House Standing Committee on Justice and Human Rights 1998).

The provincial Victims Bills of Rights have not been cited frequently in the caselaw to date, nor have they been the subject-matter of extensive academic commentary. Moreover, the operation of these statutes has been limited. The large majority of the references in caselaw are small points dealing with the victim posting security of costs (in Ontario) (see, for example, Nash v. Sisokin 2015; Alary v. Brown 2015; Lee v. Choi 2018), the application of the provincial victim fine surcharge (see for example, R. v. Broda Construction Inc. 2019; R. v. Orchotta 2004; R. v. Crawford Homes (1991) Ltd. 2019) and compensation claims (see, for example, Johnson v. Alberta (Criminal Injuries Review Board) 2017; Gonzalez v. Ontario (Criminal Injuries Compensation Board) 2016; Radusin v. British Columbia 2005).

As one might expect, the enactment of Bills of Rights is also mentioned in the context of confirming that these statutes have not overtaken the traditional perspective that crime victims do not dictate prosecutorial choices. For example, in dismissing the relevance of a victim’s recommendation of an appropriate sentencing range, the Alberta Court of Appeal noted:

We are mindful of the recent legislation directing that victims of crime be kept informed of developments in cases which directly involve them (Victims of Crime Act, S.A. 1996, c. V-3.3). However, we do not understand that those initiatives intended to give victims of crime either the authority or the responsibility to decide whether a prosecution should proceed, and if so, on what terms. That responsibility can only be discharged by qualified prosecutors who have the training, judgment and courage to make the necessary decisions inherent in every prosecution. For example, whether to proceed, and if so on what charge, whether to oppose bail, whether to seek a particular sentence and whether to appeal. Many times these decisions will be difficult and even unpopular, but the responsibility for making them must always rest with the Crown and not with victims of crime, or other interested parties. (R. v. Tkachuk 2001:27)

The Importance of Information

A cornerstone of all the Bills of Rights, whether federal, provincial or territorial, is the provision of various types of information to the victim at different stages of the criminal process. Simply put, there cannot be a meaningful right of participation if the victim is left in the dark. Studies have shown that general information and emotional support are some of the most common services provided by victim service providers (Sauvé 2010; Allen 2014; Bradford 2005; Gomes et al. 2002). These findings are not surprising given that two of the main reasons that victims contact victim services are the need for information and support (Prairie Research Associates 2004; Wemmers & Canuto 2002).

From the victim’s perspective, it is clear that they consider the provision of information at various stages of the process as of critical importance (McDonald 2016; 2020; Wemmers & Raymond 2011; Wedlock & Tapley 2016; Manikis 2014). As Susan McDonald wrote in 2016:

…[I]nformation is extremely important to victims of all crimes and their families; in research studies, these people consistently identify that they need:

  • Information about their specific case, such as notification of hearings and release;
  • General information about the criminal justice system; and
  • Practical information about services such as housing and financial support. (McDonald 2016:19).

In addition to the general information noted above, victims have also emphasized the need and importance of information for other things, such as restorative justice (Van Camp & Wemmers 2016; Wemmers 2017) and restitution (McDonald 2010; Wemmers, Manikis & Sitoianu 2017).

The provision of timely and meaningful information appears to be directly related to levels of victim satisfaction with the process: “Quality, quantity and timeliness of information can play a direct role in meeting victims’ expectations for the criminal justice process and their level of satisfaction with that process” (McDonald 2016:19; referring to Wemmers & Canuto 2002). Victims who receive information about developments in their case have a greater sense of procedural justice (i.e. feel they were treated fairly), with the greatest decline in satisfaction/feelings of procedural justice occurring when victims receive information at the outset but subsequently stop receiving such information (Wemmers & Raymond 2011).

Considering that the provision of information is of critical importance to victim satisfaction, it is surprising that the Bills of Rights, federal, provincial and territorial, uniformly fail to direct or stipulate that any particular public official take responsibility for the provision of this information. Manitoba is the exception. For example, it is prescribed in the Manitoba legislation that the “head of the law enforcement agency” must provide victims with information about the status of the investigation, the name of any person charged and whether they have been detained, as well as that the Director of Victim Services must provide victims with information regarding available victim programs and services, the structure and operation of the criminal justice system as well as the Act. This legislation also has other designations of officials responsible for providing other types of information, whereas all the other jurisdictions say nothing.

In light of this omission, it is not surprising that the provision of information to victims still remains a practical problem after many decades of living with these requirements. Research has shown that such information is not always provided to victims or victims are not always satisfied with the information they receive. For example:

The Impact of Victims’ Rights on the Criminal Process

The principles or rights which are found in the various Bills of Rights are not self-executing, and for these rights to operate effectively, it is incumbent upon legal professionals to fit these rights within the existing structure of the process. At times this is an awkward fit, and for some aspects of the process, i.e. investigation and charging, the rights directly conflict with structural components of the existing process. For other aspects, such as the trial process and sentencing, there has been a smoother and more effective integration of these rights.

Investigation, Charging and Plea Bargaining Processes

In furtherance of the objective of keeping the victim informed and involved at the pre-trial stage, the Criminal Code was amended in 2015 to require justices to put a statement on the record indicating they took into consideration the safety and security of every victim before making a release order (s. 515(13)), and to allow victims to obtain a copy of the bail order upon request (s. 515(14)). However, beyond this reform of the law of bail (and an amendment to the guilty plea process discussed below), the last twenty years has not seen significant Criminal Code reform to address victim participation at the pre-trial stage.

The provision of information to victims at the pre-trial stage is a fundamental aspect of every victim Bill of Rights across the world. In addition, most regimes also speak of a right to consult with the prosecutor about critical decisions affecting the outcome of the case. However, these general principles or rights often come into conflict with the underlying structure of the Canadian process, in which a public prosecutor is provided with virtually unreviewable discretion with respect to all aspects of the charging process.

In 2002, the Supreme Court of Canada listed the core elements of prosecutorial discretion in order to identify the aspects of the process which are virtually unreviewable:

Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code , RSC 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether: R. v. Osborne (1975), CCC (2d) 405 (NBCA); and (e) the discretion to take control of a private prosecution: Osiowy v. Linn (1989), 50 CCC (3d) 189 (Sask. CA). While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General. (Krieger v. Law Society (Alberta) 2002:46)

Subsequent to that decision, the Supreme Court confirmed that the plea negotiation process is part of this core and, as such, plea bargains are virtually unreviewable subject to the impossible and elusive proof of bad faith on the part of the prosecutor (R. v. Nixon 2011; R. v. Anderson 2014). In light of this well-established principle of prosecution, the general rights to information and consultation may appear to the victim to be hollow and abstract when the prosecutor can disregard or ignore the victim’s input with impunity.

Despite the fact that the structure of our process is founded on the British common law, in recent years the British system has evolved to move away from unreviewable Crown discretion. Specifically, in 2013, England and Wales’ Crown Prosecution Service introduced an internal administrative review process (the Victims’ Right to Review Scheme [“VRR”]) for victims to seek recourse when a decision is made not to prosecute. This Scheme, which was last revised in July of 2016, includes a right to review decisions not to charge, to discontinue or otherwise terminate proceedings. From April 2018 to March 2019, there were a total of 1,930 requests for review received with 205 of those requests being upheld (Crown Prosecution Service 2019b). The Janner (2015) case is a prime example of how the review scheme allows victims to meaningfully participate in the process and influence the decisions made regarding whether to prosecute. In that case, the CPS chose not to prosecute the accused due to concerns about the accused’s fitness to stand trial and the victim requested an independent review under the VRR in light of having a different view on the capacity issue. Upon review, a recommendation was made that CPS review their decision, which they ultimately did, and Janner stood trial (Manikis 2019a; Rogers 2017).

A recent study, however, has demonstrated mixed results about the effectiveness of this process (Illiadis & Flynn 2018). On the one hand, meaningful input into the process allowed for greater accountability while also giving victims a sense of control. Victim support workers noted that the process had benefits for victims – namely, it gave them a voice, validation, and some control –regardless of the outcome of the case. It also gave victims information about the reasons behind why the matter did not proceed, and these explanations provided victims with a sense of closure, which benefited them regardless of what the final decision was. However, several problems were also identified, which “reduce[d] victim perceptions of legitimacy in the process, thereby hindering the potentially beneficial role of the reform” (ibid:552), including a) its limited use; b) issues of accountability/independence (since CPS reviews their own decisions); c) limited data available on the process; and d) that limited information was provided to victims about the process.
In addition to this new review process, judicial review is also available to victims when a decision is made not to prosecute, but such a request will only be entertained if the decision has already been reviewed under the VRR scheme (Crown Prosecution Service 2019a). Judicial review is broader that the VRR scheme in that it also allows decisions to prosecute also to be challenged. However, the High Court will intervene “only in very rare cases” involving prosecutorial decisions generally (S. v. Crown Prosecution Service 2016:15) and when a review has been conducted under the VSS scheme, it is highly unlikely that judicial review will succeed.

In the United States, the jurisprudence to date favours the idea that crime victims have rights even before the formal filing of criminal charges, at least at a federal level (Beloof et al. 2018; Cassell, Mitchell & Edwards 2014). In Re Dean (2008), for example, the Fifth Circuit concurred with the following sentiment made by the District Court: “There are clearly rights under the CVRA that apply before any prosecution is underway” (U.S. v. BP Products North America Inc. 2008:23). Moreover, as will be discussed later, many American states now grant the victim standing in the process, which provides the victim with direct recourse to the courts without the need for a prosecutor to appeal.

A number of states have statutes granting victims an enforceable right to confer with the prosecution regarding charging decisions, while others have a general right of conferral (as does the CVRA). In Arizona, for instance, before a decision not to prosecute is finalized, prosecutors must notify the victim of the decision and provide them with reasons for declining to prosecute. Part of this obligation also entails informing the victim of their right to request a conferral before the decision has been finalized. However, “in the federal system and many state jurisdictions judicial review of charging decisions results in the almost inevitable ruling that the prosecutor was properly acting within their discretion in charging or refusing to charge” (Beloof et al. 2018:170; see also Brown 2017; Ma 2002). Nonetheless, the following outline of the current state of pre-trial reviewability in the United States shows that there has been much greater integration of the victim into the pre-trial process than in Canada:

In a few states, however, legislatures have granted judges review over prosecutors' decisions to press charges. Colorado, Michigan, Nebraska, and Pennsylvania all have similar statutes that authorize judges to review public prosecutors' decisions not to charge based on private criminal complaints. Each state requires prosecutors to provide reasons for declining to prosecute in certain kinds of cases. State law empowers trial judges to assess prosecutors' discretionary declination decisions, and those explanations provide a basis for judicial review of prosecutorial decision-making. If judges find the decision unmerited, they can order that the prosecution proceed, either by compelling the public prosecutor to litigate it or by appointing a special prosecutor. (Brown 2017:74)

Further, the Federal CVRA gives victims a specific right to be heard on plea bargains as well as a general right to confer with prosecutors. It also allows victims to move to re-open a plea if their right to be heard is violated by way of mandamus. Most states similarly have a statute or constitutional provision that affords victims either a general right of conferral/consultation with the prosecutor (which arguably includes plea bargains) or a specific right to be heard prior to the court’s acceptance of a plea (Manikis 2012; Tobolowsky et al. 2016). Courts have been open to rejecting plea agreements or informally re-opening plea hearings to ensure that all victims’ rights have been complied with (United States v. Stevens 2017; State v. Casey 2002).

Creating a meaningful right to review pre-trial decisions in Canada was proposed by victims’ rights organizations prior to the enactment of the CVBR (see, for example, Office of the Federal Ombudsman for Victims of Crime [“OFOVC”] 2014). However, it had been cautioned against by other organizations (see, for example, Canadian Bar Association 2013) and was ultimately not included in the Bill. In light of developments in England and the United States, it is somewhat surprising that a change in the conception and operation of prosecutorial discretion has not been similarly enacted in Canada. The failure to move in the direction of the U.K. and the U.S. in this regard leaves untouched the plea bargaining process, which has been one aspect of the criminal justice process that has generated the loudest outcry from victims (Verdun-Jones & Tijerino 2002).

In the 2001 report, one of the recurring themes found in the literature was that victims often felt betrayed and manipulated by the unreviewable plea bargaining process. Simply put:

Victims want a say (a real say) in the justice process. Parents, siblings and extended families of murder victims as well as victims of violent crimes and of sexual assault are frustrated by the extent to which they feel left out of the decision-making process related to the offender who harmed them. Most offensive to them is the plea bargaining process where their “voicelessness” leaves them feeling alienated by the justice system. For example, the parents of a teenager stabbed eleven times and the brother of someone shot in the back had no say whatsoever when the Crown accepted pleas in each of these separate cases. These pleas both resulted in a seven year sentence and great frustration when the victims learned the offenders could be eligible for release in less than three years. (Public Safety Canada 2001:5)

As noted in Beloof et al.’s casebook, “the victim’s interests in participating in the plea bargaining process are many. The fact that they are consulted and listened to provides them with respect and an acknowledgement that they are the harmed individual. This in turn may contribute to the psychological healing of the victim” (2018:422). In the same vein, it was noted in 2017 that “due to the vast potential of plea agreements to affect the victims’ wellbeing, victim participation is doubly justified” (Pugach & Tamir 2017:53) A series of studies conducted in Australia over the past ten years provide empirical support for the common sense belief of the importance of victim consultation in the plea resolution process:

The victims we interviewed made observations that are consistent with the procedural justice literature. They said that they wanted opportunities to express their views, and wanted these views to be genuinely taken into account by the OPP. Further, their experience of how the OPP lawyers treated them featured prominently in their interviews. The victims also clearly expressed a desire for the lawyers to take the time to understand them as people and their individual priorities. They wanted to feel that they ‘mattered’ to the prosecution lawyers. Our findings support the theory of procedural justice because they indicate that the process of being consulted is very important to victims. Victims did not simply focus on the particular prosecution decision in their case, although that remained significant for some. Rather, they expressed strong views about how the consultation process was carried out. (Centre for Innovative Justice 2019:9)

In Canada, there has been some modest legislative changes in the past two decades, short of allowing for the reviewability of prosecutorial discretion, designed to make the low-visibility process of plea bargaining more transparent and accountable. In 2015, s. 606 of the Criminal Code was amended to require the judge to make an inquiry in cases involving a serious personal injury offence as to whether the victim had been informed of the agreement. In cases involving an indictable offence with a maximum penalty of more than five years, an inquiry must be made as to whether the victim has asked to be informed of any agreement and, if so, what steps have been taken to inform them. If the victim has not been informed, the Crown has a duty to do so as soon as feasible. The validity of the plea is not, however, affected by a failure to comply with this provision.

Manitoba’s Victims' Bill of Rights is the only jurisdiction which states that, on request, victims must be given an opportunity to provide their views on any agreement relating to the disposition of a charge (though this pre-dates the 2001 report); however, this obligation is limited to when “it is reasonably possible to do so without unreasonably delaying or prejudicing an investigation or prosecution.” In addition, as discussed earlier, the absence of judicial enforcement with respect to rights enumerated in the Bills of Rights undercuts the provision of the right to consult.

In 2014, the Federal Ombudsman for Victims of Crime proposed that former Bill C-32, the Victims Bill of Rights, include provisions requiring that the victim’s views be considered with respect to plea bargaining:

While informing victims of a plea bargain is helpful in some respects, victims have very clearly indicated a desire to be informed before a plea is entered/accepted and to have a chance to make their views and concerns known to the prosecutor at that time. While the OFOVC does not recommend that victims be given any veto powers in this regard, it does recommend that the Bill ensure that out of respect for the victims and their concerns that the requirement to inform a victim occur prior to the plea and that the victims have a chance to express themselves and to have their views considered. (OFOVC 2014:13)

The CVBR did not ultimately include a provision requiring the victims’ views to be considered, and even if it did, the fundamental problem posed by plea bargaining cannot be effectively addressed without a reconsideration and revision of our jurisprudence on prosecutorial discretion, or the enactment of a statutory right of judicial review.

Protection at Trial

During the 1970s, 80s and 90s, there was a gradual and systematic effort to make the judicial process more responsive to victims of violence. With respect to violence against children and women, there were significant changes made to the substantive definitions of sexual offences and the archaic procedural and evidentiary obstacles to conviction. In addition, the court process was significantly modified to reduce the secondary victimization experienced by victims who appear as witnesses at trial. The achievements have been significant, and the law reform effected in Canada with respect to victims of violence is consistent with developments in most Western liberal democracies.

It is arguable that the most dramatic and successful achievement related to the victims’ rights movement has been the gradual creation in the 1970’s, 80s and 90s of a set of evidentiary and procedural rules designed to facilitate the effective prosecution of violent crimes against vulnerable victims. All of these changes were outlined in the 2001 report, but a number of changes have occurred since. Most of these changes are not ground breaking, but they show that the path of reform continues as most of the protective evidentiary and procedural rules have been both strengthened and expanded. Most of these changes relate to provisions in the Criminal Code and many of the changes were brought about by the enactment of the CVBR in 2015 (in the following section, all section numbers are references to the Criminal Code).

Publication Bans (ss. 486.4-486.6)

For any offence (i.e. not just sexual offences) where the victim is a minor, the court must inform the victim of their right to make an application (similar to victims of sexual offences) and must make the order when requested (2015). For sexual offences, the following changes have been made: a) new offences have been added to the list of enumerated offences (e.g. child pornography and voyeurism in 2006); and b) publication bans for child pornography offences are mandatory with no application needed (2006). Finally, a related innovation was introduced in 2015 – the ability to testify under a pseudonym to protect the security of a victim/witness (s. 486.31).

In addition, publication bans can now be made for justice system participants involved in certain cases (2001), and the list of offences where this provision applies has expanded over time (2006). Initially the test was whether an order was “necessary” for the proper administration of justice, but that has since been changed to a less rigorous test of whether it is in the “interest” of the proper administration of justice (2015).

As for the effectiveness of these bans in protecting privacy, Canadian media seems to do a better job of protecting the victim’s identity as compared to the United States, but the percentage of media reports that do disclose identifying information about such victims in Canada is not insignificant. A 2010 American study showed that 51% of media articles involving non-fatal child victimizations included identifying information about the victim. The most common identifiers were the family member offender’s name (29%) and the name of the child’s school, daycare or church (18%), but the victim’s name was also included in 9% of the articles. It is also worth noting that the publication of identifying information was significantly more common for non-sexual offences (78% vs 37%) (Jones, Finkelhor & Beckwith 2010). In contrast, a 2015 Canadian study of articles involving violence against children showed that just under a quarter (23%) of articles contained identifying information. The most common identifiers were the name of the child’s school, church or daycare (33%) and the child’s street or address (29%), but the child’s name was also included in 4.44% of the articles (Ha & Ndegwa 2015).

Third-Party Records (ss. 278.1-278.97)

Since the 1990s, the privacy of the victim has been protected by a rigorous application process and test which must be satisfied before the private records of a victim can be produced in court for evidentiary purposes. As with publication bans, this protection was strengthened and expanded in 2015. On a trivial level, the notice period for seeking records has been extended from 14 days to 60 days and the list of relevant factors to consider now includes consideration of the security interest of the victim. In addition, the list of offences to which this regime applies has waxed and waned over time.

More significantly, both complainants, and persons in control of the record, have a right to counsel and the judge has a duty to inform them of this right (2015). As was mentioned earlier, the Bills of Rights in Manitoba and British Columbia have already been providing access to counsel for these applications, but with this amendment, the practice has been extended Canada-wide, and now the victim will be provided notice of this entitlement.

In 2018, there was another significant addition to this protection with the creation of a new regime to restrict the use of private records that are already in the accused’s possession. In 2002, the Supreme Court of Canada ruled that the third-party records regime did not cover the use/admissibility of records already in the accused’s possession (R. v. Shearing 2002). Now, the accused must demonstrate that the record is relevant and has significant probative value for it to be admissible, and the victim has the right to counsel and to make submissions. If, however, the accused’s reason for introducing the private record relates to the prior sexual conduct of the victim, then its admissibility is governed by s. 276 (historically known as the rape-shield law or Seaboyer applications, and discussed in next section).

This protection has also been strengthened by judicial interpretation. In caselaw, the protection has been extended to civil litigation files (R. v. McClure 2001) and criminal injury compensation board files which contain information about the victim (R. v. S.(L.) 2000; R. v. Fayant 2004). Moreover, in 2014, the Supreme Court of Canada expanded this protection to include information about the victim contained in unrelated police occurrence reports, noting that:

There are tangible harms associated with disclosure of personal information in the context of prosecutions for sexual offences… Victims of sexual offences will be less likely to come forward if they know that doing so will entail disclosure of their past interactions with police to the very person who they claim has wronged them. (R. v. Quesnelle 2014:36)

A recent empirical study has shown that 56% of victims in Canada retain counsel for applications to release their private records (Jacuk & Hassan 2018), and a 2012 review of the legislation by the Senate concluded that “the records production scheme in the Code, for the most part, is working well. We believe that the scheme in the Code strikes an appropriate balance between the competing interests of complainants and defendants in the unique context of sexual offence trials” (Senate Standing Committee on Legal and Constitutional Affairs 2012:13). However, a small study of survivors of sexual assault found that complainants lacked an “understanding of the criminal justice system overall and third party records applications in particular (McDonald & Northcott 2011:8). Particularly problematic is the fact that several of the participants didn’t even know if their records had been produced (ibid).

“Sexual Activity” (s. 276)

Since the 1990s, for certain specified offences, there has been a protective regime in place to restrict the accused’s use of personal information relating to the victim’s sexual activities. In 2018, the regime and application process for this private information was consolidated to be consistent with the process requirements for third-party record applications. The definition of “sexual activity” was also expanded at that time to include as “any communication made for a sexual purpose or whose content is of sexual activity” to capture digital communication and the modern practice of sexting. Most significantly, the victim’s right to be advised of, and to retain, counsel now applies to these applications (2018).

While none of the provincial Bills of Rights provide counsel to victims for 276 applications (as British Columbia and Manitoba offer free counsel for third-party record applications), there has been an increase in the number of provincial programs that provide counsel for victims in such circumstances to ensure that their interests are properly represented. Some examples of how provincial jurisdictions have responded to the legal needs of survivors of sexual violence, though by no means is this list exhaustive, include:

There is a great deal of jurisprudence relating to this application process as aspects of the application process become refined or clarified through litigation; however, there has not been any significant empirical study of these provisions in recent years. Nevertheless, the 2018 introduction of right to counsel for victims is a significant development and its impact warrants further study to confirm the belief of Garvin and Beloof that independent lawyers for sexual assault victims “can open the space for authentic agency by ensuring victims cannot only decide whether and when to engage with the system but also be the architects of how they engage with the system” (2015:77). According to the authors, the importance of counsel cannot be understated, as the rights provided to protect the privacy and dignity of victims at trial “will only be realized when sexual assault victims are provided legal counsel, because only then can authentic victim agency be possible” (ibid:68; see also Tanovich 2015).

Testimonial Aids

To reduce the stress and trauma of testifying, a number of modifications to the process were made in the 1990s to accommodate young victims of violence by allowing them to testify behind a screen, by closed-circuit television or by previous videotaped statements. Many of these accommodations were constitutionally challenged by accused persons arguing that the principles of fundamental justice required that there be a face-to-face confrontation between victim and accused; however, all of the provisions withstood challenge and have since been expanded and strengthened since 2001 (see, for example, R. v. Levogiannis 1993; R. v. L.(D.O.) 1993; R. v. Potvin 1989; Canadian Broadcasting Corp. v. New Brunswick (Attorney General) 1996).

Exclusion of Public (s. 486)

A court’s authority to exclude the public has existed for many years, but in the early 2000s it was expanded to place emphasis on safeguarding minors in all proceedings, not just sexual offences, as well as justice system participants (2001; 2005). In 2015, the law was further amended so that victims and witnesses could bring an application requesting exclusion of the public on their own behalf, and the list of factors for judges to consider when deciding such applications was expanded significantly to include society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process. That same year, an alternative to exclusion of the public was also enacted, allowing judges to order that the witness be permitted to testify behind a screen so that the public cannot see them. Since 1988, screens have been employed to prevent a direct visual confrontation between victims and accused. This 2015 reform expands the use of screens to prevent a public viewing of the witness.

Support Persons (s. 486.1)

In 2006, these orders became mandatory upon application for minors (raised from the age of 14 to 18) and those with disabilities unless such an order would interfere with the administration of justice. In 2006, discretionary orders also became available for any other witness and for any offence. Moreover, support persons can now be requested during any proceeding, not just trials or preliminary inquiries (2006), and applications can be brought before any judge in the jurisdiction if no judge is assigned to the case (2015).

In recent years, support dogs have become an option for victims and witnesses. Until 2014, there had not yet been a case where an application had been made for a support dog or where a support dog had accompanied a witness while testifying (McDonald & Rooney 2014), but following the enactment of the CVBR, applications for support dogs became more commonplace. The jurisprudence to date has been divided on the proper basis for permitting a support dog to accompany the victim or witness (R. v. Benjamin 2018; R. v. Roper 2015), however, it is clear that there are growing number of cases following the words of the B.C. Provincial Court that allowing a support dog is “in accordance with what the spirit and intent of the testimonial accommodation legislation was meant to address which, at bottom, was just to ensure that witnesses who, in general, could be perceived as more vulnerable, were provided with support so that they could give full and candid accounts of what they were being asked to testify about in court” (R. v. K.(J.L.) 2015:6).

CCTV/Screens (s. 486.2)

Since 2001, there has been a continuing expansion of, and reliance upon, testifying by closed-circuit television from another room or behind a screen. In this regard, the expansion of s. 486.2 is similar to the changes that have been made to the other testimonial aid provisions. Minors and those with disabilities can now request such aids in any case (i.e. not just sexual offences) and in any proceeding (i.e. not just trials and preliminary inquiries) (2006), and judges must make an order for such victims unless they would interfere with the administration of justice (2006). Discretionary orders are also now available for any witness and for any offence (2006) and, as with the other testimonial aids, witnesses/victims can make an application on their own behalf (2006).

As with applications for private records, and applications to introduce prior sexual activity, there is a wealth of caselaw litigating countless small points of the s. 486.2 process. However, the jurisprudence has not significantly altered the basic contours of using this testimonial aid, and in 2010, the Supreme Court of Canada upheld the constitutional validity of mandatory orders (R. v. S.(J.) 2010), including the presumptive framework that children and those with disabilities need not prove that a protective order is necessary.

The Criminal Code is silent on who chooses which testimonial aid is appropriate for mandatory orders, which has led to a divide in the jurisprudence. However, the caselaw as a whole leans towards it being the applicant’s choice (see, for example, R. v. Bell 2017; R. v. Q.(T.M.) 2013).

Prohibiting Cross-Examination by Self-Represented Accused (s. 486.3)

This relatively new protection has undergone similar expansion in the past two decades. Appointment of counsel, in lieu of cross-examination by a self-represented accused, is now mandatory for all minors regardless of the charged offence (2006), as well as adult victims of criminal harassment (2006) and sexual assault (2015), unless it can be shown that the interest of the administration of justice requires the accused to personally cross-examine the witness. A discretionary application can also now be made for other adult witnesses for any offence (2006). In such instances, counsel will be appointed when the order is needed to obtain a full and candid account (2006) or when it would otherwise be in the interest of the proper administration of justice (2015). Moreover, victims and witnesses can personally request that counsel be appointed (2006).

Section 486.3 has not yet been constitutionally challenged. While the Alberta Court of Appeal in R. v. M.(C.G.) (2015) suggested in obiter that the provision would likely be upheld, others have expressed concerns about the validity of court-appointed lawyers to replace self-represented accused, with one court noting that “because of its potential effect on fundamental rights, not to mention the ethical issues it raises for the lawyer who accepts such a mandate” (Québec (Procureur general) c. Québec (Juge de la Cour du Québec) 2007:53) and another stating that  “Section 486.3(2) of the Criminal Code raises difficult practical and conceptual issues in relation to the right to make full answer and defence” (R. v. Wapass 2014:25).

Video-Taped Evidence (ss. 715.1 & 715.2)

Unlike the other testimonial aid provisions, the introduction of previously video-taped evidence at trial has not become available to all witnesses; rather, its use is still restricted to children and those with disabilities. However, in 2006, the provisions were expanded to permit such evidence for all offences, rather than just for those that were previously enumerated. That same year, there were also significant changes made to the Canada Evidence Act, with respect to child witnesses, including the abolishment of pre-inquiries into a child’s capacity to testify, thereby creating a presumption of capacity to testify for children.

There is an enormous body of caselaw on this testimonial aid and the topics of capacity and presumption are beyond the scope of this report; however, suffice it to say, in 2008, the B.C. Court of Appeal captured the essence of all these modern changes by stating that these provisions reflect “the procedural and evidentiary evolution of our criminal justice system, in order to facilitate the testimony of children as a necessary step in its truth-seeking goal” (R. v. S.(J.) 2008:54).

Empirical Research on Testimonial Aids

As noted by the Ontario Superior Court of Justice, law reform efforts to the testimonial aid provisions in the past two decades “mark an evolution in the law rendering the trial process more ‘user-friendly’ to vulnerable witnesses” (R. v. Tehrankari 2008:6). It is not surprising then that there has been a considerable amount of empirical research studying the effectiveness and operation of the various testimonial aids provisions. In this regard, some of the relevant findings have been as follows:

Sentencing and Corrections

Upon conviction, the presumption of innocence no longer applies so one would expect that there would be fewer institutional and conceptual barriers to victim participation. In most jurisdictions, participation has been secured by the introduction of victim impact statements (“VIS”), and since their introduction in Canada in 1988, their use has become a common feature of the legal landscape with a rich jurisprudence struggling to ascertain the scope and relevancy of the input given by the victim.

Since the 2001 report, there has been numerous statutory revisions to expand the scope of the VIS regime and to clarify ambiguities arising from conflicting caselaw. The most significant changes are as follows:

While it appears that VISs have been gradually accepted by criminal justice professionals, there remains some debate about issues such as the weight that should be given to them and their appropriate content (McDonald 2020; Manikis 2015a; 2019b). As such, the jurisprudence over the past two decades is voluminous and covers a wide range of issues relating to who is a victim, what is a relevant community, the appropriate form and content of the VIS, the weight to be given to a VIS and the process for resolving disputed facts.

With respect to disputed facts, this raises the issue of the propriety of having the victim cross-examined on his/her statement. The Ontario Court of Appeal addressed this dilemma in 2008 noting that:

Conferring an automatic or unconstrained right to cross-examine would risk undermining the very purpose of victim impact statements, namely, to give victims a voice in the criminal justice process, to provide a way for victims to confront offenders with the harm they have caused, and to ensure that courts are informed of the full consequences of the crime. Conferring an open-ended right to cross-examine might discourage victims from offering such statements and re-victimize those who do. On the other hand, an absolute bar on cross-examination would unduly interfere with offenders’ procedural rights. (R. v. W.(V.) 2008:28)

It may be that this dilemma is somewhat academic, as Cole (2003) found that 84% of judges stated that cross-examination on a VIS never or almost never takes place. This result was similarly replicated by Roberts and Edgar in 2006, who reported that 97% of judges said that cross-examination never or almost never took place.

Although the flurry of interest and research has tapered off in recent years, it has been noted that over the past two decades Canada has done the most research and has produced the most jurisprudence on this issue amongst all other common law jurisdictions (Manikis & Roberts 2012). In this regard, some of the relevant and important findings of the numerous studies (primarily Canadian) done on the operation and impact of VIS over the past two decades are as follows:

Victim Utilization and Satisfaction

Criminal Justice Professionals

Despite the fact that the VIS was introduced over 30 years ago, and that the research shows a growing acceptance among legal professionals, it is clear that there are still occasions where the court and the Crown will simply disregard their statutory obligations.  It is not encouraging to see that the Supreme Court of Canada felt compelled to write the following admonition just a few months before this report was written:

We do not endorse the apparent refusal of the trial Crown and Judge Stewart to permit the mother to present a victim impact statement in relation to the extortion offense. We would note that neither the trial Crown nor Judge Stewart referred to the provisions of the Criminal Code or the Canadian Victims Bill of Rights , SC 2015, c. 13, s. 2, that govern the victim's right to present a victim impact statement to the court when they refused to permit the mother to present a victim impact statement. (R.v. Friesen 2020:Footnote 5)

Finally, it is beyond the scope of this report to discuss the changes which have been made with respect to victim participation at the post-conviction and correctional stages. Nonetheless, it should be mentioned that since 2001, there have been significant amendments to the NCR (Not Criminally Responsible) process and the parole process to provide extensive notification and informational rights to victims as well as to facilitate participation (by way of an impact statement) and attendance at hearings.

Most significantly, at this correctional stage, we find a rare example of where participatory rights are enhanced by creating a corresponding welfare entitlement. In 2005, the Department of Justice created a program that provides financial assistance (travel, accommodation and meal expenses)  to victims who wish to attend parole board hearings (Department of Justice Canada 2011). This program is similar to the provincial Bill of Rights in Quebec (s. 3(1)), which provides compensation to victims for expenses incurred to testify. A 2011 survey of victims who used this financial assistance program between 2006 and 2009 found that more than one-fifth of victims (22%) would not have attended the parole board hearing without the assistance they received, while another one-fifth (20%) said they did not know if they would have attended the hearing if they didn’t receive financial assistance (ibid). Given the success of this welfare-based program in enhancing the right of victims to be heard, future consideration should be given to the creation of similar programs for other participatory rights.

The Thorny Issue of Enforcement

Despite the uniformity of the nature and scope of participatory rights in both common law and civil law jurisdictions, there is a divergence in approach with respect to the issue of how to provide remedies for violations of these participatory rights. Unlike some European and American jurisdictions, Canada’s robust formulation of participatory rights for victims has not been accompanied by the enactment of remedial provisions. This problematic missing piece has been discussed by many scholars in the field, including Professor Manikis who commented in 2014 about former Bill C-32, the Victims Bill of Rights, that: “[I]t is worth noting the unfortunate terminology of ‘rights’ that is used throughout the bill. A Bill of Rights that does not provide any form of independent recourse or redress will only raise unrealistic expectations, since it does not recognize real rights” (2014:9).

In Canada, victims generally still do not have standing to appeal or contest a decision made by the Crown, and the conventional judicial wisdom that remains is that there is no “situation where a third party is permitted to play a role in the conduct of the prosecution, to address the question of guilt or innocence or to speak to sentence. One would expect that certiorari brought by a third party directed at setting aside a conviction, acquittal or sentence would be equally unavailable…” (R. v. United States 2004:21).

Provincial Bills of Rights as well as the CVBR bar the pursuit of civil actions for violations of victims’ participatory rights, and without legislative intervention, the only existing legal remedy for the victim or witness to review certain types of adverse rulings at trial is the cumbersome, expensive and extraordinary remedy of appealing directly to the Supreme Court of Canada. For instance, in A.(L.L.) v. B.(A.) (1995), a victim was able during the trial to immediately seek relief from the Supreme Court of Canada with respect to an adverse ruling about the production of her private records. However, interlocutory appeals to the Supreme Court of Canada are few and far between.

While some victims’ groups advocated for victims to have funded legal representation and standing at various stages of the criminal justice process prior to the enactment of the CVBR, the Canadian Bar Association (2003) expressed opposition to this change for six reasons: a) added costs; b) more delays leading to judicial stays; c) problems of evidentiary disclosure; d) it would overstep the Crown’s independence and fetter the Crown’s discretion while contributing to a potentially adversarial relationship with the victim; e) it would encroach provincial jurisdiction over the administration of justice; and f) it would infringe the accused’s Charter rights of fundamental justice, presumption of innocence and a fair trial within a reasonable time.

In the absence of a viable and accessible legal remedy, victims do have recourse to administrative remedies provided for under the CVBR and under the Manitoba, Yukon and British Columbia Bills of Rights. As mentioned earlier, in 2007, the Federal Ombudsman for Victims of Crime was created as an independent body to ensure federal agencies are meeting their responsibilities to victims (OFOVC 2011). The Annual Reports do show that the Ombudsman does receive hundreds of complaints every year; however, the 2017-2018 Ombudsman Annual Report notes that overwhelmingly the most frequent general topic of inquiry or complaint is related to other levels of government (provincial or municipal), with which the Ombudsman cannot assist (OFOVC 2018). The Federal Ombudsman cannot assist the victim with respect to proceedings under the Criminal Code, and most of the Ombudsman’s work pertains to the Parole Board of Canada.

More significantly, the Ombudsman “has no power or authority to compel departments to produce information or documentation to facilitate a review, nor does it have the authority to enter into binding agreements with departments in order to address the complaint and/or systemic issues” (2014:16). His/her mandate is limited to issuing reports, providing recommendations and bringing public awareness to issues within government institutions. This failure to provide legal remedies “has fostered a perception that the CVBR is legislation that ‘lacks teeth’ – both in the sense that there is little in the way of meaningful recourse for victims and that there are no checks and balances in place to ensure accountability amongst those working in the criminal justice system” (OVOVC 2017c:11).

The United Kingdom has chosen to provide victims with a similar type of administrative remedy, but even this remedy has more “teeth” than its Canadian counterpart (and, as mentioned earlier, the U.K. in addition has specific remedies for reviewing Crown charging decisions). In 2006, England and Wales introduced a Code of Practice for Victims of Crime that included a complaint process. The Parliamentary Ombudsman can make recommendations as to the type of  redress or remedies which should be provided upon a finding of a violation, including: a) an apology, explanation or acknowledgement of responsibility; b) remedial action such as reviewing/changing a decision on the service given, revising published materials or training staff; or c) financial compensation. Breaches of informational rights, for example, can result in a combination of remedies ranging from apologies to redress payments of up to £5,000 (Manikis 2015a).

Although the Parliamentary Ombudsman does not have the power to legally enforce its recommendations, it appears that most agencies comply with its recommendations (Manikis 2013), and it has been noted that the Ombudsman is well placed in certain situations to effectively address breaches and provide adequate redress for violations (Manikis 2010b). Nevertheless, being an unenforceable administrative remedy, it is not entirely surprising that the Victim’s Commissioner (2015) found that almost three-quarters of victims that filed a complaint were not happy with the response they received.

Leaving enforcement of participatory rights to an Ombudsman, or to the Director of Victim Services (MB, YK), may seem to be the only viable options in the Canadian legal system which is still guided by the concepts of unreviewable prosecutorial discretion and the maxim that third parties do not have standing at criminal trials and appeals. However, the American legal system shares the same common law roots, and is structured in the same fashion with similar constitutional imperatives, yet in the past two decades many American jurisdictions have bestowed standing upon victims and have enacted enforceable remedies. At a general level, divorced of detail and nuance, the thrust of this important development in the United States can be summarized as follows:

Some American statutes provide victims with legal standing or representation by a prosecutor or another official to file motions before the criminal trial court to assert the victims’ rights. In other states, courts outside the criminal process can provide enforcement options to victims. For instance, in some states, an administrative court can provide a writ of mandamus directing an agency to comply with the law. At the federal level, the Crime Victims’ Rights Act (CVRA) enables victims to enforce their rights by filing a motion in the trial court as well as mandamus action before the appellate court to enforce compliance. (Manikis 2015a:183-184)

There are countless examples of the practical impacts of these remedial innovations, but three examples will suffice to show that the American regime is far more protective of victims’ rights than the Canadian. In 2006, a victim was not allowed to read their VIS out loud at the sentencing hearing, and upon filing a mandamus action, the sentence was vacated to require a re-hearing on sentence (Kenna v. U.S. Dist. Court for Cent. Dist. Cal. 2006). In 2011, a victim challenged a restitution award by way of mandamus on the basis that the trial judge did not award them the proper amount, and the matter was remitted back to the trial judge to re-calculate what amount would accurately reflect the victim’s losses that were attributable to the defendant’s offence (United States v. Monzel 2011). More recently, in 2020, a failure to allow the victim to submit a VIS before accepting a guilty plea resulted in the sentence being vacated and the matter being remanded back to the trial court for reconsideration of whether the plea agreement should still be accepted (Antoine v. State 2020).

Most of the remedial innovation in American jurisdictions has occurred in the past 10-15 years, and just prior to this flurry of legislative and constitutional reform, Professor Beloof made the following observation – one which applies with great force to the current situation in Canada:

Following the very successful first two waves of victims’ rights work – first, enacting victims’ rights statutes and then enacting victims’ rights amendments – a third wave is necessary to give real meaning to these rights. To become real, rights must be accompanied by victim standing, meaningful remedy, and review as a matter of right. Changing the legal culture is difficult and movements do not overcome obstacles all at once. The victims’ rights movement is no exception. As victim participation has become more familiar and accepted, greater achievements are now possible. Victim standing, remedy, and review are now within reach. To achieve victim standing, the problems of discretionary rights, lack of remedy, and discretionary review must be solved. (Beloof 2005:337-338)