Victim Participation in the Plea Negotiation Process in canada

2. Victims' Rights and the Prosecution of Criminal Cases (continued)

2.2 Canadian Initiatives

2.2.1 Provincial and Territorial Legislation

Following the international and national trends towards placing a greater degree of emphasis on the recognition of victims' rights in the criminal justice process, the various provinces and territories of Canada have also enacted legislation that addresses this issue (see Table 2, below). In very general terms, these statutes enshrine the right of victims to receive information about the status of their cases within the criminal justice process and establish a legislative framework for the provision of various support services to victims. For example, the preamble to the Ontario Victims' Bill of Rights, 1995 (S.O. 1995, c.6) states that:

The people of Ontario believe that victims of crime, who have suffered harm and whose rights and security have been violated by crime, should be treated with compassion and fairness. The people of Ontario further believe that the justice system should operate in a manner that does not increase the suffering of victims of crime and does not discourage victims of crime from participating in the justice process.

The Ontario statute is fairly typical of its counterparts in other territories and provinces in terms of its provisions concerning victims' rights of access to information about the prosecution of their cases. For example, section 2 of the Act states that "victims should have access to information about," inter alia, " the progress of investigations that relate to the crime;" "the charges laid with respect to the crime and, if no charges are laid, the reasons why no charges are laid;" "the victim's role in the prosecution;" "court procedures that relate to the prosecution;" "the outcome of all significant proceedings, including any proceedings on appeal:" "the interim release and, in the event of conviction, the sentencing of an accused;" and the right to submit a "victim impact statement to the court." Significantly, for the purposes of the present report, the Ontario Act is only one of two provincial statutes (the other being the Manitoba Act) that specifically addresses the right of a victim to receive information about plea negotiations – namely, details concerning "any pretrial arrangements that are made that relate to a plea that may be entered by the accused at trial" (section 2(1)(x)).

The province of Manitoba has recently implemented part of a new Victims' Bill of Rights. [5] Section 11 of the Act requires that the police respond to a request by the victim for the "name, address, and telephone number of the office responsible for prosecuting the offence." Section 12 then provides that, when victims so request, they must be given certain information about the prosecution of "their" cases. Section 12 covers, for example, details concerning victim impact statements and – most significantly, for the purposes of this report – information about "the process for entering a plea of guilty or not guilty, including the possibility of discussions between the Crown attorney and an accused person, or his or her legal counsel, on a resolution of the charge." Unlike any other jurisdiction in Canada,

Manitoba has enacted a right of victims to be consulted about various aspects of the prosecution of "their" cases. More specifically, section 14 of the Act states that:

At the victim's request, the Director of Prosecutions must ensure that the victim is consulted on the following, if reasonably possible to do so without unreasonably delaying or prejudicing an investigation or prosecution:

  1. a decision on whether to lay a charge;
  2. the use of alternative measures to deal with a person who is alleged to have committed the offence, or the accused person;
  3. staying the charge against the accused person;
  4. if the accused person is in custody, an application for release by the person;
  5. any agreement relating to a disposition of the charge;
  6. any position taken by the Crown in respect of sentencing, if the accused person is found guilty;
  7. a decision whether to appeal, or the position of the Crown respecting any appeal by the accused person. (Emphasis added).

The new legislation in Manitoba undoubtedly represents a most noteworthy expansion of victims' rights in relation to their involvement in the prosecution of "their" cases. In particular, the explicit, statutory recognition of the right to be consulted about potential plea agreements between the Crown and the defence constitutes one of the most far–reaching enhancements of victims' rights that have occurred in any Canadian jurisdiction, during recent years. However, there are, nevertheless, certain constraints that have been placed around the rights to information and consultation. First, the Manitoba legislation unequivocally places the burden upon the victim to request the necessary information or consultation. Therefore, if victims do not actually request such information or consultation, then the prosecutor is under no obligation to provide it. Second, the rights to information and consultation are hedged around with qualifying clauses: for example, the right to consultation, established by section 14 is only to be implemented, "where it is reasonably possible to do so without unreasonably delaying or prejudicing an investigation or prosecution."

In general, most of the victims' rights legislation in Canada merely exhorts criminal justice officials to make information available to victims or to consult with victims. [6] Thus, victims' rights are frequently circumscribed by language that suggests these rights are far more discretionary than absolute in nature. As Sullivan (1998, p. 7) has noted, a careful examination of the statutory words and terms employed in this body of legislation – such as " should have", " subject to limits", "in appropriate circumstances", "promote" –reveals an underlying reluctance on the part of legislators to require officials to provide critical information to the victims of crime. [7]

As a consequence of the lack of mandatory language in most of the provincial and territorial statutes, critics have noted that, in certain jurisdictions, there has been a failure to furnish a significant number of victims with basic information about such fundamental issues as their right to submit a victim impact statement to the court (Sullivan, 1998, p. 22). Furthermore, the various provincial and territorial statutes do not contain any specific mechanism for enforcement of victims' rights to receive information. Significantly, the British Columbia Victims of Crimes Act (R.S.B.C. 1996, c. 478) departs from the general model of such legislation by stipulating that certain information must be given to the victims of crime (sections 5 to 7): however, it also states explicitly that, while the Ombudsman Act, applies to the legislation, the Ombudsman is precluded from investigating any aspect of the exercise of prosecutorial discretion (section 12). The new Victims' Bill of Rights in Manitoba establishes a complaints procedure for victims who apply to the Director of Victims' Support Services and it is also possible for victims to complain to the provincial Ombudsman, who must appoint a "Crime Victim Investigator" to deal with such complaints (sections 27 to 31).

On the whole, it appears that victims of crime in most Canadian jurisdictions are still treated as the passive consumers of criminal justice services rather than active participants in the decision–making process Kent Roach (1999). This situation is neatly illustrated in the following statement:

Police and prosecutors could treat the new consumer politely and give them information about what was happening. Nevertheless, victims would likely remain frustrated by the lack of control over the end product and by their involuntary status as consumers of criminal justice (Roach, 1999, p. 287).

Sullivan (1998, p. 10) suggests that, at the very least, the applicable provincial and territorial legislation should specify who is responsible for ensuring that victims are informed of their rights. In particular, it is essential that police and prosecutors are made aware of the specific forms of information that they should be providing to the victims of crime. [8] Finally, there needs to be more effective coordination of the various agencies that provide victim services in order to ensure that critical information is routinely made available to victims.

Table 2: Provincial and Territorial Legislation Relating to Victims' Rights During Court Proceedings

2.2.2 Federal Legislation

In recent years, the Parliament of Canada has enacted a number of critical provisions that grant the victims of crime a greater degree of participation in the decision–making processes of the criminal justice system (Young, 2001). None of these provisions have addressed the question of plea bargaining but they undoubtedly reflect the general international trend towards enhancing the status of victims as major stakeholders in the criminal justice process. As early as 1988, the Criminal Code was amended in order to permit the introduction, during the sentencing process, of a written victim–impact statement: however, whether or not the information was actually considered was a matter left to the discretion of the trial judge. In 1995, the Criminal Code was amended (S.C. 1995, c. 22, s. 6) so as to require sentencing courts to consider written victim–impact statements (s. 722(1)). However, this amendment still assigned victims a relatively passive role in the sentencing process and, in order to remedy this unsatisfactory situation, the Criminal Code was further amended (s. 722(2.1)) in order to accord victims the right to personally read a victim–impact statement in open court or to "present the statement in any other manner that the court considers appropriate" (S.C. 1999, c. 25, s.17). [9] Furthermore, at the same time, a new provision was added to the Criminal Code (s. 722.2), which requires a sentencing judge to inquire whether the victim or victims have been duly informed of their right to submit a victim–impact statement and gives the judge the power to grant an adjournment so that a victim–impact statement may be prepared or an opportunity made available for the victim to present evidence in court (S.C. 1999, c. 25, s. 18).

Similar legislative initiatives have been enacted by Parliament in relation to other stages of the criminal justice system that fall within federal jurisdiction. For example, under the Corrections and Conditional Release Act, provision has been made to "recognize victims formally as an important part of the criminal justice system" (Solicitor General Canada, 1998, p. 5). The Correctional Service of Canada and the National Parole Board are obligated to provide certain information about an offender when victims request it (CCRA, sections 26 and 142). In addition, available victim information must be obtained by CSC case managers and incorporated into the decision–making processes of the NPB and the CSC when they are required to determine and manage the level of risk posed by an offender. An evaluation of these provisions (Solicitor General Canada, 1998, p. 30) concluded that,

Victims are increasingly being recognized, both formally and informally, as an important part of the criminal justice system. Decision–makers in the National Parole Board are using victim–related information to assist in determining risk, and are responding to requests from victims by imposition of additional conditions when the Board members believe they will increase the safety of the victim or other members of the public, and assist management of any risk posed by the offender.

Significantly, a victim satisfaction survey indicated that there was a "fairly high level of victim satisfaction" with the implementation of these victims' rights (Solicitor General Canada, 1998, p. 30).

In July 2001, the federal policy of permitting victims to participate directly in certain decision–making processes within the criminal justice system was further strengthened by the announcement that victims would now be permitted to submit oral statements at National Parole Board Hearings (Solicitor General Canada, 2001, p. 1).

In recent years, it is clear that the Parliament of Canada has strengthened victims' rights to the point where victims are now being granted the opportunity to make their voices heard in a number of critical decision–making points in the criminal justice process – particularly, sentencing and parole. Plea bargaining remains an area where the victims are excluded from the process and where their voices are barely heard – if at all. As McGillivray (1997–98, para. 20) aptly points out,

While some prosecutors consult with complainants in plea bargaining, there is no ethical or policy requirement that they do so. Plea bargaining is a closed–door and often hasty process, unmediated by the judiciary.