Bill C-32 and the Impact on the Criminal Justice System and Victims’ Rights in Canada

Ira Tee

March 18, 2016

Submitted as Major Paper in CLT

*This is a draft paper. It is made available to Community CLE registrants. This paper should not

be distributed to others without the author’s express opinion.

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Introduction

On July 23, 2015, Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to

amend certain Acts1, came into force. The former Attorney General of Canada, Peter MacKay,

explained in a House of Commons debate2 that Bill C-32 “will truly be transformative in

improving rights for victims within our criminal justice system” and that “the time has come to

take a different approach to meeting the needs of victims of crime in Canada – an approach that

recognizes victims’ needs through clearly defined and enforceable rights.” Bill C-32 was

designed to address victims’ feelings of neglect and exclusion within the criminal justice system.

It is no surprise victims may feel excluded from the system as the parties in a criminal trial are

the Crown, who is acting on behalf of Canadian society, and the defendant. The victim is not a

party to the proceedings, but is treated as another witness3. Rather than focussing on the accused

or defendant in the proceedings, Bill C-32 brings the victim back into focus by creating rights for

victims. However, there is some debate about whether this Bill was necessary to begin with and

whether it created any significant changes for victims that did not already exist prior to its

enactment. Bill C-32 was introduced in the House of Commons after online consultations and in-

person consultations were held in 16 cities across the country4. Bill C-32 enacted the Canadian

Victims Bill of Rights (“CVBR”)5, and amended the Criminal Code6, the Canada Evidence Act7,

and the Corrections and Conditional Release Act8. The focus of this paper is to describe the

1 Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts, 2nd Sess, 41st Parl, 2015 (assented to 23 April 2015) (“Bill C-32”). 2 House of Commons Debates, 41st Parl, 2nd Sess, No 147 (20 February 2015) at 1005 (Hon Peter MacKay). 3 Canada, Parliamentary Information and Research Service, Bill C-32: An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts Legislative Summary (Ottawa: Library of Parliament, 2014) at 1. 4 Ibid. 5 Canadian Victims Bill of Rights, SC 2015, c C-13. 6 Criminal Code, RSC 1985, c C-46. 7 Canada Evidence Act, RSC 1985, c C-5 (“CEA”). 8 Corrections and Conditional Release Act, SC 1992, c 20 (“CCRA”).

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provisions of Bill C-32 and consider the changes for victims which the Bill implemented pre-

and post-trial. This paper will also consider whether Bill C-32 brought any significant changes to

victims by considering other legislation and case law.

Canadian Victims Bill of Rights

The largest change with Bill C-32 is the enactment of the CVBR. The CVBR defines a

‘victim’ to mean “an individual who has suffered physical or emotional harm, property damage

or economic loss as the result of the commission or alleged commission of an offence”9. This is a

change from the previous definition of a ‘victim’ which only stated that a victim “includes the

victim of an alleged offence”10. The CVBR also allows for a representative of the victim to act on

his or her behalf, if the victim died or is incapable of acting. Representatives include the victim’s

spouse or person with whom the victim has been in a conjugal relationship for at least one year,

the victim’s relatives or dependants, and persons responsible for the victim or for the care of the

victim’s dependants11. An exception to this is that a person who would normally be able to claim

as a representative of the victim but who is charged or found guilty of an offence against the

victim, is not able to claim under the CVBR12.

In addition to setting out the definition of a victim and who may claim under the CVBR,

the CVBR creates four types of rights for victims: the right to information, the right to

participation, the right to security, and the right to restitution. The right to information13gives a

victim the right to information about their role in the criminal justice system, victims services

that they can use, and the ability to file a complaint if any of the rights under the CVBR are

9 CVBR, s 2. 10 Criminal Code, RSC 1985, c C-46, s 2 as it appeared on 22 July 2015. 11 CVBR, s 3. 12 CVBR, s 4. 13 CVBR, ss. 6, 7, 8.

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infringed or denied. If the offender is in a correctional facility, the victim also has the right to

information about the offender’s conditional release and hearings in front of the Review Board if

the accused was found not criminally responsible on account of mental disorder (“NCRMD”), or

was found unfit to stand trial14.

Under the right to protection, the CVBR gives every victim the right to have their security

and privacy considered by the appropriate authorities in the justice system, and “to have

reasonable and necessary measures taken by the appropriate authorities in the criminal justice

system to protect the victim from intimidation and retaliation”15. In addition, if the victim is a

complainant or witness to the offence, he or she can request for their identity to be protected and

that they be permitted to use testimonial aids16.

Under the right to participation, the CVBR allows a victim to present a victim impact

statement and to have it considered by the appropriate authorities. A victim is also allowed to

communicate their opinion on the decisions that appropriate authorities in the criminal justice

system make which affect the rights given under the CVBR and to have their opinion

considered17.

Lastly, every victim has the right to restitution. Under the CVBR, “[e]very victim has the

right to have the court consider making a restitution order against the offender”18. If the

restitution order is granted, the CVRA also gives the victim the right to enter the restitution order

“as a civil court judgment that is enforceable against the offender”19.

14 CVBR, s 8. 15 CVBR, ss 9, 10, 11. 16 CVBR, ss 12, 13. 17 CVBR, ss 14, 15. 18 CVBR, s 16. 19 CVBR, s 17.

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The general provisions of the CVBR provide that the CVBR applies to a victim from the

time that an offence is reported, and up to and including the time that the offender is in

corrections or being conditionally released, or if the offender is under the jurisdiction of the court

or Review Board due to their NCRMD designation or fitness to stand trial20. The CVBR will only

be applicable if the victim is present in Canada, is a Canadian citizen, or is a permanent resident

according to the Immigration and Refugee Protection Act21. In respect to its interpretation, the

CVBR is “to be construed and applied in a manner that is reasonable in the circumstances” and

would not likely interfere with the administration of justice, the police, prosecutorial discretion,

ministerial discretion22. It should also not be construed in a way that would endanger an

individual or harm international relations or national defence. If the CVBR is inconsistent with

other legislation, then the CVBR trumps the other legislation, except the Canadian Bill of

Rights23, the Canadian Human Rights Act24, the Official Languages Act25, the Access to

Information Act26, and the Privacy Act27. The CVBR is of course also subject to the Canadian

Charter of Rights and Freedoms28.

If any of the rights under the CVBR are infringed or denied, the victim has the right to file

a complaint with the governing department or agency, according to the complaints procedure in

place or in accordance with the laws of the province or territory. If a victim is not satisfied with

the outcome from a complaint against a federal body, he or she can have it further reviewed by

20 CVBR, s 18. 21 CVBR, s 19(2). 22 CVBR, s 20. 23 Canadian Bill of Rights, SC 1960, c 44. 24 Canadian Human Rights Act, RSC, 1985, c H-6. 25 Official Languages Act, RSC 1985, c C-31 (4th Supp.). 26 Access to Information Act, RSC 1985, c A-1. 27 Privacy Act, RSC 1985, c P-21 28 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“Charter”).

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“any authority that has jurisdiction to review complaints in relation to that department, agency or

body”29.

While the CVBR does provide several rights and remedies for victims, they are still not a

party to the proceedings30. Furthermore, a victim does not have a cause of action or claim for

damages if any of their CVBR rights were denied or infringed31. A decision or order can also not

be appealed solely because a right under the CVBR was denied or infringed32.

Lastly, Bill C-32 stipulates that five years after the CVBR comes into force, a Parliamentary

committee will be established to review it. As the CVBR came into force in 2015, the review is

supposed to occur in 2020.

Criminal Code Amendments

Included in Bill C-32 are many amendments to the Criminal Code. There are about

twenty-eight sections that were replaced, eight newly added sections, and five sections that were

repealed. This section of my paper will summarize the amendments according to replacements,

additions, and repealed provisions.

Replacements

The first major replacement was the definition of “victim” in section 2 of the Criminal

Code, in order to conform with the definition of ‘victim’ in the CVBR. Rather than just being the

victim of an alleged offence, the amendment describes the victim as a person who has suffered a

form of physical or emotional harm, property damage, or economic loss due to the offence. The

29 CVBR, ss 25, 26. 30 CVBR, s 27. 31 CVBR, s 28. 32 CVBR, s 29.

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definition is expanded to consider the various types of damage that can occur to someone and to

allow the victim’s experience to be varied to these types of harm.

Secondly, there was a change regarding the production orders to the accused under

section 278.2. The previous section was amended so that instead of a list of offences to which

records relating to the complainant or witness need not be disclosed to the accused, the

amendment instead proclaims that for any offence in the Criminal Code, the records relating to

the complainant or witness need not be produced, except in accordance with subsequent sections.

In section 278.3, the amount of time an application for production of records should be served on

the prosecutor, to the records holder, and to the complainant or witness was increased from 7

days to 14 days prior to the hearing. When a judge is considering whether to make a production

order of the records pertaining to the complainant or witness, the judge must also consider the

complainant’s or witness’ right to personal security, along with the original factors of right to

privacy and equality33.

Bill C-32 also amended the offence of intimidation of a justice system participant under

section 423.1(1). Rather than enumerating the acts that constitute intimidation, the new section

provides a blanket provision that any conduct that is intended to cause the justice system

participant to be fearful is intimidation.

While courtrooms in Canada have traditionally been open to the public, there are certain

cases in which the public can be excluded, in accordance with section 486(2). That section has

now been replaced to include more factors that the judge must consider before ordering public

exclusion. Some of the factors now include society’s interest in the participation of witnesses, the

ability of the witness to give a full and candid account of the acts, and considerations regarding

the witness’ and justice system participants’ security and protection. 33 Criminal Code, ss 278.5(2), 278.7(2), 278.7(3).

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With regard to witnesses under 18 years old and those who have a disability, section

486.1 now allows them to apply for a support person to be with them while they testify, rather

than relying on the prosecutor only. In considering this application, the judge not only has to

consider whether this would facilitate the witness to give a full and candid account of the events,

but now also if it would be “in the interest of the proper administration of justice”34. The

amendments include that an application can also be heard by any judge or justice with

jurisdiction if a judge or justice has not yet been assigned. The same factors in the above

exclusion of public section, are the new factors that judges should consider before granting an

exclusion order. These factors are similar to the exclusion of public amendments, including the

need to protect the witness’ security and society’s interest to encourage witnesses to report

offences and participate in the process35. The amendments made to the support person provision

are also repeated in section 486.2 in regard to being able to testify outside of the court room for

witnesses under 18 and those who have a disability.

Since an accused has the right to cross-examine a witness, there are special provisions for

witnesses under 18 years old. With Bill C-32, section 486.3 was amended to include a provision

for certain offences. If the accused was charged with an offence under sections 264 (criminal

harassment), 271 (sexual assault), 272 (sexual assault with a weapon or causing bodily harm),

and 273 (aggravated sexual assault), then the witness can apply to the judge for an order that the

accused not personally cross-examine them if the accused is self-represented36. If an order is

made, the judge or justice appoints counsel to conduct the cross-examination.

For sexual offences specifically, a victim may apply for an order restricting publication of

information that could potentially identify them under section 486.4. A change to this section is

34 Criminal Code, s 486.1(2). 35 Criminal Code, s 486.1(3). 36 Criminal Code, s 486.3(2).

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the use of the terminology ‘victim’ rather than the previous ‘complainant’. Secondly, subsections

486.4(2.1) and (2.2) were included to consider victims under 18 years’ old who were involved in

an offence that was not listed in subsection 486.4(1). For a victim under 18 years old, he or she

may apply for an order that their identity not be published or broadcast in any way, and the judge

must inform them of their right to apply for such an order.

Section 486.5 was also amended to expand the restrictions for publication of the identity

of a justice system participant. Subsection 486.5(1) provides identity protection for a victim or

witness, if the offence was not already covered in section 486.4. Comparatively, subsections

486.5(2) and (2.1) especially consider the other justice system participants where the offences

are related to organized crime or terrorism. These justice system participants who are not the

witnesses or victim can apply to have the judge order that their identity not be published or

broadcast in any way. Another change to this section is that, in deciding whether to make an

order, the judge just has to consider whether there is a real and substantial risk that the victim,

witness or justice system participant would suffer harm37, rather than significant harm as

required under the previous section.

Under section 672.5, if the offender was found not criminally responsible on account of

mental disorder, then a victim can file a victim impact statement to be included at a disposition

hearing in front of the Review Board. This section was amended to include instructions about

what the victim impact statement should include – the physical or emotional harm, property

damage, or economic loss. There is also now a new form (Form 48.2) that must be used for this

victim impact statement.

When it comes to the sentencing provisions in sections 718 and 718.2, there are a few

minor amendments. First, in section 718 which sets out the purposes of sentencing, the 37 Criminal Code, s 486.5(7).

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‘protection of society’ is included as the fundamental purpose. In the objectives of sentencing

listed in section 718, the words “and the harm done to the victims or community” are added to

clause (a) which stated previously only stated “to denounce the unlawful act”. Secondly, in the

sentencing principles in section 718.2(e), which require judges to consider “sanctions other than

imprisonment that are reasonable in the circumstances”, that clause now requires judges to

decide that a sanction other than imprisonment would also “be consistent with the harm done to

the victims or community.”

Victim impact statements in section 722 and community impact statements in section

722.2 were also amended. The new section on victim impact statements sets out what the

statement can include, how it should be presented, and directions to use a new form to be used

for the statement. The community impact statement section also enumerates how a community

impact statement can be provided and presented to the court, with similar provisions as set out in

the victim impact statement.

If an offender receives a probation order, section 732.1 was amended to indicate that the

court must give a copy of the probation order to the victim, if they request it.

The victim surcharge provision in section 737 has been amended so that the time for

payment of the surcharge would be established by the lieutenant governor in council, and if no

time is established, then the surcharge must be paid within a reasonable time.

Section 741 dealing with the enforcement of a restitution order was amended to declare

that an offender who fails to make payments is in default of the order and the remaining amount

owed may be entered as a civil judgment. Section 741.1 dealing with the notice of restitution

orders was also amended to include a clause that if the restitution is to be paid to a public

authority, the public authority should be notified of the content of the restitution order.

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Lastly, if a court imposes a conditional sentence order on an offender, section 742.3 has

been amended to include a provision that a copy of the order shall be given to the victim, if they

request it.

Additions

Section 2.2 of the Criminal Code is a new provision that defines when a person can act

on a victim’s behalf, and provides the exception that a person who caused the harm, but who

would otherwise be able to act on the victim’s behalf, is not able to do so.

Secondly, section 278.4(2.1) was added so that at hearings for production of records of

the complainant or witness, the judge must inform the records holder of their right to be

represented by counsel at the hearing.

A major addition to the Criminal Code is section 486.31 which deals with the non-

disclosure of a witness’ identity. A witness may now apply to a judge to make an order that any

information that could potentially identify him or her not be disclosed. Factors for the judge to

consider include balancing the accused’s right to a fair and public hearing, against the witness’

concerns about their security or protection. Included as well are the factors of protecting a peace

officer’s undercover identity and protection of national security or intelligence.

When bail is considered for an accused under section 515, the new subsection (13)

provides that the judge or justice is now obligated to consider the safety and security of the

victim. As well, subsection 515(14) provides that if an accused does receive bail, the victim is to

be provided with a copy of the bail order if they request it.

Under section 606, which deals with pleas, four new subsections were added – (4.1),

(4.2), (4.3), and (4.4). These new subsections provide that for certain offences, such as murder

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and personal injury offences, the court has to inquire of the prosecutor, if a plea agreement has

been made, whether the victim has been informed of that agreement. The same is required for

certain indictable offences. If the victim has not been informed of the plea agreement, subsection

606(4.3) requires the prosecutor to inform the victim of it as soon as possible. A failure to inform

the victim of the plea agreement does not invalidate it38.

Another significant addition is the section regarding restitution under section 737.1. This

new section provides that a court can consider making a restitution order if the court discharges

the offender. Included are provisions regarding the timing of the application of the restitution

order and a form the victim or other persons should fill out in order to apply for restitution. The

section also adds that if the court does not make a restitution order, the reasons for this need to be

recorded. Subsequent sections that were added – sections 739.1, 739.2, 739.3, and 739.4 -

consider the offender’s side of a restitution order, including that the offender’s ability to pay is

not determinative of an order.

Repealed

Section 380.3, which dealt with the court considering restitution orders was repealed, as it

is now under the CVBR sections 16 and 17. Also repealed is section 380.4, which allowed for a

community impact statement to be presented. The community impact statement is now dealt with

under section 722.2, as discussed above.

Amendments to the Canada Evidence Act

Although very short, one of the most important amendments that Bill C-32 makes is the

amendment to the CEA. The amendment changes the previous restriction on spousal 38 Criminal Code, s 606(4.4).

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compellability. Previously, it was a general rule that spouses are not compellable as witnesses

against their spouse. Whereas the previous version of the provision39 contained only a list of

offences which were exceptions to the ban on spousal compellability, the amendment removed

the list of exceptions and made all spouses compellable no matter the offence. Section 4(2) of the

CEA now reads, “No person is incompetent, or uncompellable, to testify for the prosecution by

reason only that they are married to the accused.”

Related to the above amendment, subsections 4(4) and 4(5) were repealed. These sections

provided that spouses were compellable for certain offences against youth, and that nothing in

section 4 of the CEA would cause the spouse of the accused to be called a witness against the

accused without their consent at common law. Since the amendment that the accused’s spouse is

compellable against the accused no matter the offence, there is no need for these subsections.

The last addition to the CEA is subsection 16(3.1) which prevents counsel from asking

any potential witnesses about his or her understanding of a promise to tell the truth, if it relates to

whether the witness would be able to testify.

Amendments to Corrections and Conditional Release Act

Lastly, Bill C-32 amended the CCRA through replacement of words in several sections,

seven new additional sections, and the repeal of one section.

First, the CCRA’s definition of ‘victim’ was replaced with the definition of ‘victim’ in

section 2 of the CVBR. Since the CVBR included a section on who can act on the victim’s behalf,

subsections 2(3) and 2(4) were included to mirror the same CVBR section and the exception.

Consistent with the CVBR’s guarantee of the right to information, section 26 of the CCRA

was amended. Subsection 26(1)(b)(v) authorizes the Commissioner (of Corrections) to disclose, 39 CEA, s 4(2) as it appeared on 22 July 2015.

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to a victim who requests it, information regarding the offender’s departure from Canada under

the Immigration and Refugee Protection Act40. Subsection 26(1)(c) has also been added,

providing that the Commissioner must disclose information to a victim who requests information

about the date on which the offender will be released for any reason (temporary absence, work

release, parole, statutory release), the conditions attached to the release, and the offender’s

location when released. The decision of the Commissioner to provide information to the victim is

always determined by considering the offender’s privacy rights and public safety. The disclosure

of the offender’s release date, conditions, and location must be disclosed to the victim before the

day the offender is released, preferably at least 14 days beforehand41. In the event that the

offender’s release information changes, the Commissioner has a continuing duty to update the

victim42.

Other additions to this section include a provision that the victim can designate a

representative to whom the Commissioner can disclose information43. If a victim originally

requested information changes his or her mind and no longer wants disclosure, he or she must

write to the Commissioner in respect to this decision44. If the Commissioner has attempted to

contact the victim but is unable to do so after the victim requests for disclosure, the inability to

contact the victim is deemed to be a withdrawal of the request for disclosure45.

Another addition is section 26.1 which provides victim-offender mediation services. The

services revolve around restorative justice programs and mediation. The mediation services can

40 Immigration and Refugee Protection Act, supra. 41 CCRA, s 26(1.1). 42 CCRA, s 26(1.2). 43 CCRA, s 26(5). 44 CCRA, s 26(6). 45 CCRA, s 26(7).

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only be conducted if the Commissioner’s Directives are met and if all parties voluntarily agree to

participate.

With regard to the sections about long-term supervision conditions under section 134.1,

three subsections were added – (2.1), (2.2), and (2.3). The Review Board must consider the

victim’s impact statement if the victim provides one to them, and the Review Board must impose

any conditions that would be reasonable and necessary to protect the victim. The Review Board

must also provide written reasons if it decides not to impose any conditions. If a victim does not

provide an impact statement to the Review Board, the Review Board is not precluded from

imposing conditions relating to the victim. The Review Board can also change or remove any

conditions it imposes at any time during the long-term supervision46.

For mandatory review hearings, Bill C-32 repealed subsection 140(6), which said that if

there was an observer at a hearing, the information or documents used in the hearing did not

mean they would become publicly available. At mandatory review hearings, subsection 140(10)

is consistent with the CVBR’s right to participation, as a victim may attend a hearing and present

a statement about the harm he or she suffered and its continuing impact. In upholding a victim’s

right to information, four new subsections were added to section 142, which provided that

disclosure of information at mandatory review hearings be given to victims. Similar to the

disclosure when an offender was being released, a victim can have a representative who is given

information on the victim’s behalf47. A victim is also able to withdraw his or her request for

information, and if the Commissioner fails to contact the victim after he or she requests for

disclosure, this is deemed as a withdrawal of the request for information 48.

46 CCRA, s 134.1(4)(b). 47 CCRA, s 142(3.1). 48 CCRA, ss 142(3.2), (3.3).

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Lastly, section 144.1 was added, which provides that a victim should receive a copy of

any decision made in regard to a mandatory review hearing if he or she requests it. The decision

whether or not to produce a copy for the victim is determined by considering whether any

person’s safety is at issue, if it would reveal a confidential source of information, or if it would

prevent the offender from successfully reintegrating into society.

Landscape before the CVBR

When the former Minister of Justice Peter MacKay introduced the CVBR, it was to be a

new era for victims’ rights. As described above, there was a plethora of amendments to the

important legislation in the criminal justice system. While a large number of amendments to the

legislation may suggest that there will be a significant change in the criminal justice system, the

words alone do not necessarily mean a change actually occurs. In order to consider whether the

CVBR does make a difference, there should be a comparison of the rights and services that

victims were provided prior to and after the enactment of the CVBR. In this section, I will

consider the legislation in place and victims’ services prior to the CVBR.

Charter of Rights and Freedoms

First, there is the Charter49. While the Charter does not explicitly address victims’ rights,

several Charter rights can be applied to protect victims’ rights. For example, in Bill C-49’s50

preamble, sections 7 (the right to life, liberty, and security of the person) and 15 (the right to

equality) were cited by Parliament as reasons for amending the Criminal Code to increase

49 Canadian Charter of Rights and Freedoms, supra. 50 Bill C-49, An Act to amend the Criminal Code (sexual assault), 3rd Sess, 34th Parl, 1992 (assented to 15 June 1992). Bill C-49 amended the Criminal Code’s ‘rape shield’ laws in section 276. The amendment prevented the use of sexual offence victims’ past sexual history to support claims that the victim was more likely to have consented or that the victim was less worthy of belief.

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victims’ rights51. Section 8 of the Charter (the right to be free from unreasonable search and

seizure) can also be said to be a privacy right. While the accused normally exercises this right in

the course of his or her involvement in the criminal justice system, section 8 could be applied to

the victim. Especially in previous cases where the offence was of a sexual nature, victims were

often subject to intrusive lines of cross-examination, where their personal history and private

information were put in the spotlight. For example, when the defence applies for production of

counselling records, this is arguably an unreasonable seizure of the victim’s right to have their

records seized by the defence and put before the court52. Of course, this will still have to be

balanced with the accused’s right to make full answer and defence.

Canadian Statement of Basic Principles of Justice for Victims of Crime

In 2003, Parliament endorsed the Canadian Statement of Basic Principles of Justice for

Victims of Crime53, which attempted to follow the United Nations’ Declaration of Basic

Principles of Justice for Victims of Crime and Abuse of Power54. The endorsement of the

Canadian Statement affirmed that the Charter protected all persons, that victims’ and offender’s

rights must be balanced, and that the federal and provincial governments agreed that the

Canadian Statement should guide how victims are treated in the criminal justice system55. The

Canadian Statement states that victims’ privacy “should be considered and respected to the

greatest extent possible” and that victims’ safety and security is to be considered at all times.

51 Joan Barrett, “Expanding Victims’ Rights in the Charter Era and Beyond”, (2008) 40 SCLR (2d) 627 at para 27. 52 Canada, Department of Justice, “Victim Privacy and the Open Court Principle”, by Jamie Cameron (Ottawa: Policy Centre for Victims Issues, 2003) at 36. 53 Canadian Statement of Basic Principles of Justice for Victims of Crime, online: (2003) <http://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/03/princ.html> (“Canadian Statement”). 54 UNGA, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res 40/34, UNGAOR, 40th Sess, UN Doc A/RES/40/34 (29 November 1985) <http://undocs.org/A/RES/40/34> accessed 16 March 2016. 55 Canadian Statement at para 2.

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Like the CVBR, the Canadian Statement also states that victims be given information about the

progress of the case, from investigations to corrections, and about their role in the system. The

Canadian Statement ends with the suggestion that victims be given a way to voice their concerns

if they feel the Canadian Statement has not been adhered to in their situation56.

While the Canadian Statement was endorsed by the federal and provincial governments,

it is not legislation that can be enforced. Instead the Canadian Statement sets out basic guidelines

or goals which the governments hoped would be followed, but there were no actual rights given

to victims. The Canadian Statement was just that – a statement of what should occur and

recognition of how victims should be treated, but with no actual action to ensure victims are

treated properly. Even though the Canadian Statement has not been ‘repealed’ or withdrawn with

the enactment of the CVBR, the principles it encouraged are now encompassed within the CVBR.

B.C. Victims of Crime Act

The B.C. Legislature enacted the Victims of Crime Act (“VCA”)57, which governs what

victims are entitled to provincially while they navigate the criminal justice system. In the VCA,

“victim” is defined similarly to the CVBR, as it includes persons who suffer “physical or mental

injury or economic loss… [and includes the] individual against whom the offence was

perpetrated or, …is a spouse, sibling, child or parent of the individual” (VCA, s. 2). Section 3 of

the VCA provides that the Attorney General ensure that the victim is provided with legal advice

and representation, such as when there is an application for a third party record, or if the victim

can not afford legal representation on their own.

56 Canadian Statement at para 3. 57 Victims of Crime Act, RSBC 1996, c 478 (“VCA”).

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Section 4 of the VCA is similar to the CVBR’s sections regarding the submission of a

victim impact statement, as it directs Crown counsel to make sure a victim has been able to

describe to the court the impact the offence has had on them before sentencing of the offender.

Again, similar to the CVBR, there are several sections that designate information to be given to

victims.

Section 5 of the VCA directs justice system personnel to give victims information about

the operation of the justice system, victim services, the Freedom of Information and Protection

of Privacy Act58, the Crime Victim Assistance Act59, and the VCA. Section 6 of the VCA also

allows the victim to request and receive information about the investigation, court appearances,

the sentence, and release dates and conditions post-sentencing. With regard to the custody and

release conditions for an offender, section 7 of the VCA allows for a victim to request and receive

information if the victim’s interests outweigh the offender’s privacy interests. The information

that may be given includes the offender’s location while in custody, the date and conditions of

release, any changes to the release conditions, and the location where the offender will be if

released on probation or parole60.

Sections 8.1 and 9 of the VCA also provides for a victim surcharge levy that the offender

must pay if a fine is imposed, and sets out what the Attorney General can do with these funds.

As in the CVBR, if anything under the VCA was not done or was omitted to be done, a

victim does not have a cause of action, an appeal, a claim for damages or other remedy61. As

58 Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165. 59 Crime Victim Assistance Act, SBC 2001, c 38 (“CVAA”). 60 VCA, s 7. 61 VCA, s 10.

19

well, an order, conviction, or sentence cannot be appealed solely on the basis that one of the

rights granted by the VCA was infringed or denied62.

In terms of a complaints mechanism, the B.C. Ombudsperson63 has jurisdiction to

investigate a complaint regarding the VCA. However, the Ombudsperson cannot investigate or

interfere with decisions that Crown counsel or special prosecutors make in the prosecution of an

offence64.

An annual report on the VCA is also conducted, as part of the Attorney General Act65, on

the VCA’s administration66.

The VCA also considers victims’ circumstances and specifically makes it an offence for

an employer to punish a victim for taking time from work to appear in court as a witness or to

meet with justice system personnel67.

Crime Victim Assistance Act

Along with the VCA, the B.C. Legislature has also enacted the Crime Victim Assistance

Act (“CVAA”), which as the name suggests, is meant to assists victims of crime. The CVAA

applies only to offences that occurred after July 1, 197268, but does not include motor vehicle

offences or those that fall under the Workers Compensation Act69.

Similar to the CVBR, those who can apply for assistance include the victim or person who

was directly injured, an immediate family member, a person who may not be related to the

victim but who is strongly emotionally attached to the victim, and a legal representative on 62 VCA, s 11. 63 Ombudsperson Act, RSBC 1996, c 340. 64 VCA, s 12. 65 Attorney General Act, RSBC 1996, c 22. 66 VCA, s 13. 67 VCA, ss 14, 15. 68 CVAA, s 2. 69 Workers Compensation Act, RSBC 1996, c 492.

20

behalf of the victim70. Applications for benefits can be made within a year after the date of the

offence, but for sexual offences there is no time limit71.

Some of the benefits that may be awarded to a victim or on behalf of the victim include

medical services, disability aids, counselling services, protective measures, replacement of

personal property, income support, and transportation expenses72. All of the listed benefits under

section 4 of the CVAA are not equally available to the categories of those who may apply, but

decrease as the relation to the victim is farther removed.

Under section 5 of the CVAA, a victim may receive a benefit whether or not the offence is

prosecuted. Subsection 5(4) states that under the CVAA, a conviction, a discharge under section

730 of the Criminal Code, or a NCRMD finding is enough to conclude that the offence was

committed.

Similar to the CVBR, benefits cannot be given to a victim or immediate family member

who was a party to the offence73. Section 9 of the CVAA also states that any benefit may be

reduced, limited, suspended, or terminated if: the applicant refuses or fails to find another way to

receive compensation; the victim or family member’s conduct directly or indirectly contributed

to the death or injury; or the recipient does anything that jeopardizes his or her safety, or is

contrary to the benefit’s purpose or the condition in order to receive the benefit74. The Director

of Crime Victim Assistance (the “Director”) decides whether or not the actions described require

the benefit be reduced, suspended, or terminated. The other limit to the reception of the benefit

includes not cooperating with law enforcement authorities75.

70 CVAA, s 3. 71 Ibid. 72 CVAA, s 4. 73 CVAA, s 9. 74 CVAA, s 9(2)(c). 75 CVAA, s 9(3).

21

If an applicant is not approved for benefits, the victim or family members can request the

director to reconsider his or her decision within 60 days of the original decision76. The

reconsideration is conducted by persons who were not present at the original decision77. The

reconsideration decisions are not to be reviewed in court or appealed further, except on a

question of law or excess of jurisdiction78.

The victims and family members are able to commence a legal action against a person

arising out of the offence, but must also serve a copy to the Director79. The Director is also able

to bring an action against any person arising from the offence if the victim or family members

are receiving a benefit under the CVAA, but did not commence an action on their own, or, if the

victim or family members did commence an action, but a settlement was agreed to after the date

a benefit under the CVAA was provided80. In the Director’s action, the Director can claim and be

the assignee of the victim or family member’s rights to damages in the action that equal the value

of the benefits that have been or will be provided81. In addition, if the Director makes a claim,

the amount that a victim or family members claim in their own legal action that commences after

the Director’s action will be reduced by what the Director claims as damages or value of benefits

provided or will be provided in the Director’s action82.

Lastly, since this benefit would be granted to the victim or family members based on an

assessment of eligibility, section 23 of the CVAA states that if the victim or recipients should not

have been entitled to benefits, but otherwise still received benefits, they are liable to repay the

government. This repayment is a debt due to the provincial government, and the provincial

76 CVAA, s 13. 77 CVAA, s 14. 78 CVAA, s 14.1. 79 CVAA, s 15. 80 CVAA, s 16(1). 81 CVAA, s 16(2). 82 CVAA, s 16(3).

22

government may file a claim to recover the money, or deduct the amount from subsequent

benefit payments83.

One of the problems with receiving benefits under the CVAA are the conditions you have

to meet in order to receive benefits. There is almost a burden on the victim or his or her family

members to be able to prove their loss and show the director why they are deserving of

assistance. Acceptance and distribution of benefits are all in the discretion of the Director, as

well, so it seems like an arbitrary decision as to who receives benefits and how much they

receive. The provisions of the CVAA also give off the impression that it is to be used as a last

resort for victims of crime, and it is not available to every victim because there is an eligibility

designation.

Victims Services

The latest information on victims services comes from a Juristat article from 2011-2012

that was released in 201484. Although the information is date by about four years, the data is

useful to describe what victims services were like before the implementation of the CVBR. 760

victim service providers and six criminal injuries compensation programs were involved in the

study through the Victim Services Survey85. About 90% of service providers provided some type

of protection or crisis help, and aided victims’ navigation through the court system by court

accompaniment programs, assistance with preparing victim impact statements, or witness

preparation86. Some services also offered included medical services or hospital accompaniment,

83 CVAA, s 23(3). 84 Canada, Statistics Canada, “Victim services in Canada, 2011/2012”, by Mary Allen in Statistics Canada catalogue No 85-002-X (Ottawa: Statistics Canada, 2014). 85 Ibid at 4. 86 Ibid at 4-5.

23

transportation, or shelter and housing services87. About 56% of the service providers gave some

compensation-related assistance in terms of claims for compensation. For some others, providers

gave financial compensation or helped pay for counselling.

For victims service providers on reserves, restorative justice services were the most

common type of service. This included victim offender mediation, sentencing circles, and

consensus-based decision-making on the sentence. However, the availability of these programs

varied across the country88.

The most common at victims services were police-based at 36%, followed by

community-based services, and then by non-profit organizations89. Not all service providers

provided services directly to the victims – some only referred victims to other organizations.

About 35% of service providers were mandated to service victims of specific types of offences

(for example, sexual offences), while the majority offered services to all victims in general90.

The Correctional Service of Canada (CSC) through the Parole Board of Canada provided

direct services to victims of crime. Victims may be eligible for financial aid to attend parole

hearings and participate. For example, in 2011-2012, at 140 parole hearings, 223 victim

statements were presented. Victims are also provided with information regarding the status of the

offender, including when the offender will be released, if they register with the CSC91.

Criminal injuries compensation programs did exist in all provinces, except for

Newfoundland and Labrador, but not the territories. In 2011-2012, $146 million was awarded to

victims through compensation programs. These programs would give financial aid to victims to

help with the financial impact of being a victim. The programs varied across the provinces due to

87 Ibid at 5. 88 Ibid at 6. 89 Ibid at 7. 90 Ibid at 8. 91 Ibid at 11.

24

different eligibility criteria but generally compensation can be awarded even if the offender was

not prosecuted or convicted. In 2011-2012, there were almost 20,000 applications for

compensation and about 78% were approved, 16% were rejected, and the remaining 6% had

other outcomes, such as the application being withdrawn92.

Does Bill C-32 and the CVBR change much?

Pretrial and Trial Procedure

One of the biggest changes is the change in the definition of ‘victim’, in the Criminal

Code. Rather than being limited to a person who suffers physical or emotional loss only, ‘victim’

has been expanded to those who have suffered property damage or economic loss, as well. This

definition is more inclusive of the various types of harms that can occur. The new provision that

allows for individuals to act on behalf of the direct victim is an acknowledgement that crime

impacts more than the primary victim. However, the new provisions still do not recognize

persons in an intimate relationship with the victim but who are not cohabiting with them, and

close friends or those not related to the victim from having an opportunity to present their views.

The provisions in the Criminal Code related to production of victim records93 require the

judge to consider personal security of victims and witnesses as a factor when determining

whether a production for records should be ordered. This addition will likely not provide any

significant change in present judicial practices whether records are ordered. Although not

previously been explicit of personal security, it is very likely already that judges had this factor

in mind when deciding whether or not to order disclosure of victims’ or witnesses’ personal

records.

92 Ibid at 12. 93 Criminal Code, ss 278.5(2), 278.7(2), 278.7(3).

25

In regard to testimony of witnesses under 18 or witnesses with a disability, the existing

provisions regarding the use of a support person94 or testifying outside the courtroom95 were

amended so as to enumerate factors to consider in such applications, in accordance with section

13 of the CVBR. While the new provisions now allow these types of witnesses to apply for the

special provisions on their own accord, rather than relying upon the prosecutor, it does not seem

likely that this change will significantly alter current practices. Crown counsel will continue to

seek these accommodations when they seem appropriate or helpful. The factors that were added

to the consideration of either section were already potentially included in the general clause “any

other factor that the judge or justice considers relevant”.

A large procedural change for judges, prosecutors, and defence counsel is in regard to the

victim’s right to participation under section 14 of the CVBR by having the right to convey their

views about decisions to be made by appropriate authorities including the new Criminal Code

subsections 606(4.1) to (4.4) dealing with pleas. If the accused is charged with a serious personal

injury offence, murder, or an indictable offence that has a maximum penalty of at least five

years, any plea negotiations or agreements that counsel put to the judge should have been relayed

to the victims before the court receives the plea agreement. The judge now has the responsibility

to ensure that he or she asks Crown counsel if the victim was informed. This will cause a

problem, however, when counsel resolve cases on the day of trial, just minutes before their

matter is called. Rather than consideration of the victim’s views on the plea agreement, the

victim would be informed, as is required in provision, but is stuck with living with the agreement

without much say. This section may also cause problems for defence counsel, whose clients may

want to get matters completed as quickly as possible. If Crown counsel need time to contact

94 Criminal Code, s. 486.1. 95 Criminal Code, s. 486.2.

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victims and inform them of dispositions, then defence counsel and their clients will have to wait

for the victims to be informed. This means that matters will not be settled as quickly as

previously.

Lastly, the CEA was amended so that no one is considered incompetent or uncompellable

to testify for the prosecution just because they are married to the accused96. This is a major

change in the manner in which the prosecution and defence will run their cases, particularly in

domestic abuse cases. Previously, spouses were not compellable, except where the accused was

charged with certain offences, but this new change leaves all spouses compellable for any

offence. This change may see many unwilling witnesses and more hostile witness applications.

Sentencing

Section 15 of the CVBR, the victim’s right to present a victim impact statement and have

it considered by the appropriate authorities, is strengthened with Bill C-32. Following the

amendment to the Criminal Code section 722, a victim impact statement can now be received not

just from the principal victim, but also from family members and relatives who were affected by

the crime. As well, those who experienced economic or property loss can now file a victim

impact statement, because of the expansion of the definition of ‘victim’. With the above

expansions, it is likely more victim impact statements will be submitted by a variety of people

associated with the victim. Thus what is to likely change is the number of victim impact

statements submitted, the types of harm they include, and the number of victim impact

statements reported by others on behalf of the victim.

The section governing community impact statements has been expanded and is now more

in line with current victim impact statement provisions. Community impact statements are not a 96 CEA, s 4(2).

27

new concept, however they used to require that the statement had to be in writing and explain

how the statement reflected the community’s views on the case. Under the new changes,

community impact statements can be presented as appropriate, just as with victim impact

statements. However, the community impact statement is not necessarily going to be considered,

unlike the victim impact statement, after a finding of guilt. Whereas there can be an adjournment

for a victim to complete a victim impact statement, this is not the case with a community impact

statement.

What is likely to be different for both victim impact statements and community impact

statements is the use of standardized impact statement forms. In considering the effect of the

CVBR, Derrick J. commented on the changes, if any, of the victim impact statements submitted

in the case of R v BP97. At the time of her judgment, the CVBR was not in force, but her decision

to discuss it was to prevent concerns that her sentencing judgment would be different if she had

waited until after the CVBR was in force. The court reiterated principles that victims are not a

party to the proceedings, and that vengeance does not belong in sentencing98. It is a first principle

that victim impact statements are to assist the judge in finding an appropriate sentence, and they

are not to contain criticisms of the offender nor recommendations or comments about the

sentence99. The court was of the impression that the CVBR did not change, in substance, what a

victim could include in their victim impact statement, and in fact the standard form (Form 34.2)

even included the prohibited content that had previously been in set out in case law. In essence,

Derrick J. leaned towards the idea that the substance of a victim impact statement did not change

with the CVBR, except to the extent that a standard form would aid in preventing victims from

including impermissible statements.

97 R v BP, 2015 NSPC 34, 2015 CarswellNS 521. 98 Ibid at paras 33-34. 99 Ibid at paras 36-37.

28

In terms of how the the CVBR has been applied, R v Zadeh100 is an example of a judge

explicitly listing the sections of the CVBR that they were considering. In this case, sections 9 and

10 of the CVBR regarding the right to security and to have that security considered to protect the

victim from intimidation and retaliation, were specifically mentioned101. When delivering the

sentence and conditions imposed on the offender, the judge stated he was taking into account the

victim’s right, and his justification for imposing a no-contact order specifically referenced safety

and security of the victim102. At the end of the sentence, the judge also stated that the Crown

shall inform the victim of the sentence imposed on the offender and directed the Crown to fulfil

the right to information in sections 6 to 8 of the CVBR103.

Post-Sentencing

In terms of post-sentencing changes for the CCRA, in compliance with the CVBR’s right

to information, there is not much change since the emphasis on the disclosure of information to

victims regarding an offender’s release date, conditions, and location was already in place. What

is new is the requirement that the Commissioner must continue to disclose any changes to the

offender’s release104 and that the information can be given to a representative instead of to the

victim if the victim is not able to be present105. This recognizes that it may be financially difficult

for the victim to be present consistently. As well, there is now a section that allows for victim-

offender mediation, should all parties agree to it106. This is a change that facilitates an attempt to

heal and repair on all sides, rather than solely pursue the traditional punitive approach of

100 R v Zadeh, 2015 BCPC 401, 2015 CarswellBC 3942. 101 Ibid at paras 54-56. 102 Ibid at para 70. 103 Ibid at para 90. 104 CCRA, s 26(1.2). 105 CCRA, s 26(5). 106 CCRA, s 26.1.

29

imprisonment. In terms of parole hearings, victims were already able to present an impact

statement regarding the harm they suffered, but now property damage is mentioned as being a

valid harm, not just physical or emotional harm. However, considering the types of more serious

offences which require parole hearings, this change will likely not substantially add to the

number of impact statements presented at parole hearings.

The ‘Rights’ in the CVBR

The rights that the CVBR purports to give to victims are not concrete or guaranteed. The

rights are subject to the discretion of appropriate authorities in the criminal justice system for

their consideration or approval. For example, a broad reading of the provisions under the right to

information may appear as if the information is freely given to the victim. However, the

provisions under the right to information are only that the victim should be given if the

information if he or she asks for it. The language in the CVBR notes that “[e]very victim has the

right, on request, to information about…”107 This means that the information does not have to be

given automatically in order to comply with the CVBR. Looking at the right to protection, the

provisions do not give a victim any sureties that they can use testimonial aids or have their

identity protected. The language of the CVBR states that a victim has “the right to request”108 for

these options but the requests could be denied. Similarly, the security and privacy provisions

state that the victim has the right to have these factors “considered by the appropriate authorities

in the criminal justice system”109. Lastly, for the right to restitution, the word ‘consider’ is used

again in the provision giving a right to have a court order restitution110. There is no surety that a

107 CVBR, s 6. 108 CVBR, ss 12, 13. 109 CVBR, ss 9, 11. 110 CVBR, s 16.

30

victim will be given a restitution order, but the victim has the right to have a judge consider

making it. A close reading of the provisions shows that the rights recognized by the CVBR are

just that – only recognized. It is recognized that these rights are important and should be upheld,

but they are only fulfilled subject to someone else’s approval. In this way, the rights are hollow.

Conclusion

While the CVBR and Bill C-32 are important steps toward the recognition of a victim’s

role in the criminal justice system, victims are still not a party in the Canadian criminal justice

system. It is true there were numerous amendments to legislation, however the amendments

seemed to be an expansion of definitions already included in the previous versions of the

legislation, rather than a new right or service. As discussed above, even the ‘rights’ given by the

CVBR are not guaranteed, but are rights only if victims proactively request for action or for

consideration of their views. All rights in the CVBR are still subject to the discretion of

appropriate authorities in the justice system. Furthermore, even if the rights in the CVBR are

denied or infringed, victims do not have any cause of action except to go to the complaints

department in the province or federal division.

Despite the lack of teeth in the CVBR and arguable lip service in giving rights to victim,

on the whole, having the CVBR is positive because of the public attention and concern for

victims’ interests. With this legislation, there is a unified response across the country about how

victims should be treated. Rather than a patchwork of services and rights provincially enforced, a

federal initiative ensures equal provisions for victims and prevents against misinformation.

The response to the CVBR from criminal justice professionals seems to be that it does not

change much for victims, especially in B.C. because of already existing legislation. Adept Crown

31

counsel were already keeping victims updated and informing them of plea negotiations.

However, there’s now this extra duty for them be able to show they have done this job to the

court. For the public, at least, sentiments about the CVBR seem to be the opposite. The public is

finally being informed of and understanding how strenuous, unnavigable, and sometimes

disappointing the criminal justice system can be. The CVBR can be the support for victims to be

able to speak up with some legal force, and perhaps to change how victims are involved in this

adversarial system. Rather than measuring effect through visible substantial or procedural

changes in the justice system, perhaps what should matter more is the what the new legislation

means for victims. If victims were ignored and shut out of the system before, then perhaps the

CVBR will provide comfort in knowing their voices will be heard and therefore ensure victims

are treated with courtesy, compassion and respect as mandated in the preamble.

32

Bibliography

Legislation

Access to Information Act, RSC 1985, c A-1.

Attorney General Act, RSBC 1996, c 22.

Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts, 2nd

Sess, 41st Parl, 2015 (assented to 23 April 2015).

Bill C-49, An Act to amend the Criminal Code (sexual assault), 3rd Sess, 34th Parl, 1992

(assented to 15 June 1992).

Canadian Bill of Rights, SC 1960, c C-44.

Canada Evidence Act, RSC 1985, c C-5.

Canadian Human Rights Act, RSC 1985, c H-6.

Canadian Statement of Basic Principles of Justice for Victims of Crime, online: (2003)

<http://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/03/princ.html>

Canadian Victims Bill of Rights, SC 2015, c C-13, s 2.

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule

B to the Canada Act 1982 (UK), 1982, c 11.

Corrections and Conditional Release Act, SC 1992, c C-20.

Crime Victim Assistance Act, SBC 2001, c 38.

Criminal Code, RSC 1985, c C-46.

Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165.

House of Commons Debates, 41st Parl, 2nd Sess, No 147 (20 February 2015) at 1005 (Hon Peter

MacKay).

Immigration and Refugee Protection Act, SC 2001, c C-27.

33

Official Languages Act, RSC 1985, c C-31 (4th Supp.).

Ombudsperson Act, RSBC 1996, c 340.

Privacy Act, RSC 1985, c P-21.

UNGA, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA

Res 40/34, UNGAOR, 40th Sess, UN Doc A/RES/40/34 (29 November 1985)

<http://undocs.org/A/RES/40/34> accessed 16 March 2016.

Victims of Crime Act, RSBC 1996, c 478.

Workers Compensation Act, RSBC 1996, c 492.

Jurisprudence

R v BP, 2015 NSPC 34, 2015 CarswellNS 521.

R v Zadeh, 2015 BCPC 401, 2015 CarswellBC 3942.

Secondary Material

Canada, Department of Justice, “Victim Privacy and the Open Court Principle”, by Jamie

Cameron (Ottawa: Policy Centre for Victims Issues, 2003).

Canada, Parliamentary Information and Research Service, Bill C-32: An Act to enact the

Canadian Victims Bill of Rights and to amend certain Acts Legislative Summary (Ottawa:

Library of Parliament, 2014).

Canada, Statistics Canada, “Victim services in Canada, 2011/2012”, by Mary Allen in Statistics

Canada catalogue No 85-002-X (Ottawa: Statistics Canada, 2014).

Joan Barrett, “Expanding Victims’ Rights in the Charter Era and Beyond” [2008] 40 SCLR (2d)

627.