Patrick Smith
Ottawa Citizen
OTTAWA – The federal government’s newly unveiled Victims’ Bill of Rights limits the discretion of judges over when a person convicted of a crime pays a victim fine “surcharge.”
It also ends the right spouses currently have to decline to testify against their mate in a criminal case.
Some judges have openly rebelled against the mandatory victim fine surcharge, which became law on Oct. 24, 2013. They have refused to enforce it, for example, or have applied time frames of up to 60 years for an offender to pay. In many cases, they have done this because the person does not have the means to pay.
Victim surcharge fees are currently set at 30 per cent of any fine imposed on a criminal or, if no fine is applied, $100 for certain offences and $200 for others.
Under the new bill, the mandatory surcharge would have to be paid “within the reasonable time established by the lieutenant governor of the province in which it is imposed” – meaning judges would no longer have the discretion of giving offenders generous deadlines.
Norm Boxall, an Ottawa defence lawyer and past president of the Criminal Lawyers’ Association, criticized the new limit.
“When you start restricting the discretion of judges on victim fine surcharges … it’s counter-productive to the ability of a judge to determine what’s appropriate in the unique circumstances of each case and apply justice,” he said. NDP leader Tom Mulcair said Thursday many element of the legislation will need careful study.
Here are five other things to know about the bill:
1. It amends the Canada Evidence Act to remove the immunity of a spouse has from testifying against a partner charged with a crime.
In the past, spouses were not required to testify against one another except in cases such as sexual assaults or crimes against youth. Should this bill pass, spouses would no longer have the option of refusing testimony if requested.
Boxall was critical. “The thought now that when you speak to your husband or wife that they could be brought into court to testify against you is a fairly significant change. I don’t recall that being a part of the victim’s rights issues.”
2. It gives victims the right to request information about a criminal case, including release date and a photo of the offender showing what he or she looks like after release.
“They need to be informed along the way,” said Sue O’Sullivan, the federal victims’ rights ombudsman. “If victims are going to exercise their rights, they have to know what those rights are. Bringing some clarity to what some of those expectations are around that is an important part.”
3. It allows witnesses, in some cases, to testify using a pseudonym.
Although witnesses have historically been required to use their legal names, the bill would permit them to shield their identity at the discretion of the courts.
Boxall suggested this might raise a different problem. “I think there’s a freedom of press issue, too. Courts are to be open, and it’s a restriction on what’s open.”
4. Victims will have access to a complaints procedure.
“It is a huge improvement,” said University of Ottawa criminology professor Irvin Waller. “If you look at the Bill of Rights in Ontario, for instance, there’s no complaint procedure. In Manitoba, there is a complaint procedure, but it’s pretty limited.”
Irvin, who said he was “pleasantly surprised” to see this framework included in the legislation, viewed it as a step in the right direction.
5. Victims could ask the courts to consider imposing a restitution order against the offender.
“There already are existing provisions for restitution in appropriate situations, restitution that is appropriate,” said Boxall. On the other hand, Waller viewed restitution as a positive factor, citing the need for victims to not be out of pocket due to circumstances out of their control.
“That means that restitution is going to be considered more often, so that’s good news,” he said.
