You may have more rights than you realized. Survivors of sexual abuse who participate in the criminal justice system have had their rights enhanced by the Canadian Victims’ Bill of Rights, which became law in July of 2015. While there is some overlap with the Ontario act of the same name in place for the last 20 years, there is now more accountability required in the new federal legislation. Judges are now mandated by the Criminal Code to inquire and ensure that victims of crime have been informed or have been consulted about specific procedures that affect them. Victims can now also apply to testify outside the courtroom by closed-circuit television in certain circumstances and are not permitted to be cross-examined by an unrepresented accused. This is good news as long as victims in the criminal justice system know that they have these rights.
Here is a brief overview: The rights encompassed by the new law fall into four main categories:
- The right to information
- The right to protection
- The right to participation; and
- The right to restitution.
The right to information includes information about how the criminal process works as well as information about services and programs that are available. It covers information about the status of your case from the initial investigation to the final hearing and details about the time and location of each court proceeding and their outcome. You also have the right to be informed about details of the offender’s bail, and receive copies of orders related to bail sentencing and probation. After an offender is sentenced to prison, there is additional information that you are entitled to through Correctional Service of Canada and the Parole Board of Canada. Your rights also include the right to information about filing a complaint if your right is violated.
The right to protection means that your privacy and security must be considered as well as your protection from retaliation and intimidation that is reasonable and necessary. The court can do this in various ways such as issuing a publication ban regarding a victim’s identity. It can also order a testimonial aid such as closed circuit television to allow you to testify outside the courtroom. The new legislation gives victims the right to apply for the use of a testimonial aid in addition to the Crown having that right. Using closed circuit television can make the intimidating task of testifying less intense and more comfortable for some survivors. The legislation also reduces the criteria necessary for a court to order it. The new law also provides protection of prohibiting your cross-examination to be conducted by an unrepresented accused individual.
The right to participation gives you the right to express your views and have them considered by the Justice System concerning aspects of your case that affects your rights. This may have a significantly positive impact on participation in plea bargain agreements. Prior to this law, there was no requirement for Crowns to consult with victims when negotiating a plea bargain. Their decisions were to be driven by the public’s best interest, the victim being one member of the public. While the legislation only requires that the Judge inquire whether the victim has been informed of the plea bargain, being informed will provide an opportunity for you to express your views on the proposed agreement. Judges are also now required to consider the victim’s safety and security in decision concerning bail and sentencing. Victim impact statements have also been expanded to allow for photos or drawings that help you to express yourself as well requiring consistency in garnering information about physical, emotional, property damage or financial impacts experienced.
Finally, the right to restitution requires courts to consider making a restitution order for your financial loss. This loss must be based on records of actual losses up until the date that the offender’s sentence is imposed. The court is not required to order restitution but must consider making the order regardless of the offender’s ability to pay. To be considered, financial loss caused by the crime can be related to lost or damaged property, physical or psychological harm suffered, and living costs if you had to move. The legislation requires a standard form be provided to assist with claiming losses.
The above is a very abbreviated summary of the rights that you as a survivor of sexual abuse now possess if you proceed through the criminal justice system. If you have concerns that you are being denied one of these rights you are entirely justified to raise those concerns with the police, the Crown or the Judge. The Canadian Victims’ Bill of Rights was designed to support victims of crime, so insisting on compliance with it is an appropriate way to ensure that you are treated fairly.