5. What Role for Victims?

In this session, we will look at the potentially disruptive presence of victims for the trial and the very definition of criminal justice. Traditionally, victims were very much absent from criminal justice in Canada and beyond. However, a strong movement began to manifest itself in the 1970s to ensure that the system at least did not end further victimizing victims. Contrary to an inquisitorial process, where victims typically have a much more central role, the adversarial procedure of the common law is much less at ease with making room for victims. In an accusatorial procedure, there can really only be two parties. This does not meant that rights of an administrative nature, on the edges of the criminal process, cannot be given more pride of place but that it is difficult to consider that victims are "parties" as such.

The United Nations had a key role in adopting the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. This is not an international treaty, just soft law that nonetheless was adopted by the UN General Assembly and has a certain weight. For our purposes, focus mostly on the rights of victims of crime. The broad parameters of a more victim-sensitive regime are outlined. For example, such efforts should be "without prejudice to the rights of suspects or offenders". The central idea is that "Victims should be treated with compassion and respect for their dignity." This means in particular a certain access to justice and a certain responsiveness to the needs of victims. There is both a specifically judicial and a more generally administrative aspect to this: the former is clearly the most complex from the point of view of justice.

It took 30 years for a Victim Bill of Rights to be adopted in Canada. The key rights protected therein are information, protection, participation and restitution. The practical implementation of those rights, however, is more complicated. One issue for example is whether the rights of the victims, especially victims who testify, might ever end up curtailing those of the defence. The rights to privacy or freedom of thought or religion of victims, for example, might clash with the need for a full adversarial process and open cross-examination. Although victims have a right to be consulted, the case law has also drawn the line quite clearly to indicate that they do not have the upper hand on the prosecution (in inquisitorial systems the victims may be better able to 'piggy-back' on the state's action). The question arises in particular in cases where victims do not support prosecutions, for example in cases of intimate partner violence. How much should the Prosecution defer to such wishes, and how much should it be willing to ignore them? There are problems associated with both positions, the risk of sacrificing the public interest and the protection of victims, or the risk of further victimizing victims by not taking their wishes seriously.

The participation of victims remains an area of contention among commentators. More traditionalist scholars are particularly wary of how giving too much of a place to victims might upset the delicate balance of the adversarial trial and end up violating the rights of the defendants. Scholars who are more open to victim participation will point out that victim clearly have rights too, and that insofar as possible these should be respected. There are many ways in which the rights of the defence, the prerogatives of the Crown and the dignity of victims can be reconciled but these typically take work and subtlety, and this is an area that has emerged as a strong challenge of the criminal justice system's traditional methods.

Bibliography:

• • Paciocco, David M. “Why the Constitutionalization of Victim Rights Should Not Occur.” Crim. LQ 49 (2004): 393.

  • Barrett, Joan. “Expanding Victims’ Rights in the Charter Era and beyond.” The Supreme Court Law Review 40 (2008): 20.

  • “The Role of the Victim in the Criminal Justice System -- Circle Sentencing in Inuit Communities | CASAC”.

• Department of Justice Canada, Victim Privacy and the Open Court Principle, chapters 2 & 3.

  • Barrett, Joan. “Expanding Victims’ Rights in the Charter Era and beyond.” The Supreme Court Law Review 40 (2008): 20.

  • Kirchengast, Tyrone. Victimology and Victim Rights: International Comparative Perspectives. Taylor & Francis, 2016.

  • Manikis, Marie. “Imagining the Future of Victims’ Rights in Canada: A Comparative Perspective.” 2015) 13 (1) Ohio State Journal of Criminal Law 163 186 (2015).

  • ———. “Recognizing Victims’ Role and Rights during Plea Bargaining: A Fair Deal for Victims of Crime.” Crim. LQ 58 (2011): 411.

  • Markin, Teagan. “Victim Rights in Sentencing: An Examination of Victim Impact Statements.” Canadian Criminal Law Review 22, no. 1 (2017): 95.

  • ———. “Victim Rights in Sentencing: An Examination of Victim Impact Statements.” Canadian Criminal Law Review 22, no. 1 (2017): 95–119.

  • McLachlin, J. Balancing Charter Interests: Victims’ Rights and Third Party Remedies, by Joan M. Barrett (Scarborough: Cars Well, 2001, Looseleaf, $125/Yearly Supplements) Textbooks Can Have an Important Influence on the Law. Before Dicey’s Introduction to the Study of the Law of The. HeinOnline, n.d.

  • Perrin, Benjamin. “More than Words: Enhancing the Proposed Canadian Victims Bill of Rights (Bill C-32),” 2014.

  • Roach, Kent. “Victims’ Rights and the Charter.” Crim. LQ 49 (2004): 474.

  • Tian, Li. “Victims’ Opportunities to Review a Decision Not to Prosecute Made by the Crown Prosecutor,” 2013.

  • Verdun-Jones, Simon N., and Adamira A. Tijerino. “Victim Participation in the Plea Negotiation Process: An Idea Whose Time Has Come.” Crim. LQ 50 (2005): 190.

  • Verdun-Jones, Simon, and Adamira Tijerino. “Four Models of Victim Involvement during Plea Negotiations: Bridging the Gap between Legal Reforms and Current Legal Practice.” Canadian Journal of Criminology and Criminal Justice 46, no. 4 (2004): 471–500.

  • Wilson, Larry C. “Independent Legal Representation for Victims of Sexual Assault: A Model for Delivery of Legal Services.” Windsor YB Access Just. 23 (2005): 249.

  • Young, Alan N. “Crime Victims and Constitutional Rights.” Crim. LQ 49 (2004): 432. Markin, Teagan. “Victim Rights in Sentencing: An Examination of Victim Impact Statements.” Canadian Criminal Law Review 22, no. 1 (2017): 95–119.

  • Karmen, Andrew J. “Who’s against Victims’ Rights-The Nature of the Opposition to Pro-victim Initiatives in Criminal Justice” (1992) 8 John’s J Legal Comment 157.

  • Kelly, Deborah P. “Victims’ Perceptions of Criminal Justice Symposium: Victims’ Rights” (1983) 11 Pepp L Rev 15 (7 pages).

  • Roach, Kent. “Four Models of the Criminal Process.” J. Crim. L. & Criminology 89 (1998): 671.

  • Fletcher, George P. With Justice for Some: Victims’ Rights in Criminal Trials (Addison-Wesley Publishing Company Wokingham, UK, 1995).

  • Hindelang, Michael J, Michael R Gottfredson & James Garofalo. Victims of personal crime: An empirical foundation for a theory of personal victimization (Ballinger Cambridge, MA, 1978).

  • Shapland, Joanna, Jon Willmore & Peter Duff. Victims in the criminal justice system (Gower Aldershot, 1985).

  • Strang, Heather, others. Repair or revenge: Victims and restorative justice (Clarendon Press Oxford, 2002).

  • Shapland, Joanna. “Victims, the criminal justice system and compensation” (1984) 24:2 The British Journal of Criminology 131.

  • Strang, Heather, others. Repair or revenge: Victims and restorative justice (Clarendon Press Oxford, 2002).

  • Hemptinne, Jérôme De. “Challenges raised by victims’ participation in the proceedings of the Special Tribunal for Lebanon” (2010) 8:1 Journal of International Criminal Justice 165.

  • Rapneau, Coline, others. “Participation des victimes et droits de la défense: Décision de la chambre préliminaire des CETC du 20 mars 2008 relative à la participation des parties civiles dans l’appel de Nuon Chea contre sa détention provisoire/Victims’ Participation and the Rights of the Defence: ECCC Pre-Trial Chamber 8 March 2008 Decision Regarding the Participation of Parties Civiles in the Appeal Filed by Nuon Chea Agains his Pre-Trial Detention” (2011) Revue québécoise de droit international (RQDI) 199.

  • Erez, Edna. “Victim participation in sentencing: And the debate goes on…” (1994) 3:1-2 International Review of Victimology 17.

  • Hanna, Cheryl. “No right to choose: Mandated victim participation in domestic violence prosecutions” (1996) Harvard Law Review 1849.

  • Hemptinne, Jérôme De. “Challenges raised by victims’ participation in the proceedings of the Special Tribunal for Lebanon” (2010) 8:1 Journal of International Criminal Justice 165.

  • Lamborn, LeRoy L. “Victim participation in the criminal justice process: The proposals for a constitutional amendment” (1987) 34 Wayne L Rev 125.

  • McGonigle, Brianne N. “Bridging the Divides in International Criminal Proceedings: An Examination into the Victim Participation Endeavor of the International Criminal Court” (2009) 21 Fla J Int’l L 93.

  • O’Hara, Erin Ann. “Victim participation in the criminal process” (2005) 13 JL & Pol’y 229.

  • Pena, Mariana. “Victim participation at the International Criminal Court: achievements made and challenges lying ahead” (2009) 16 ILSA J Int’l & Comp L 497.

  • Beloof, Douglas Evan. “The Third Model of Criminal Process: The Victim Participation Model” (1999) Utah Law Review, online: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=174788>.

  • Gruber, Aya. “Victim Wrongs: The Case for a General Criminal Defense Based on Wrongful Victim Behavior in an Era of Victims’ Rights” (2003) 76 Temple Law Review 645.

  • Cassell, Paul G. “In defense of victim impact statements” (2008) 6 Ohio St J Crim L 611.

  • Englebrecht, Christine M. “The struggle for‘ ownership of conflict’: An exploration of victim participation and voice in the criminal justice system” (2011) Criminal Justice Review 0734016811399419.

  • Erez, Edna & Ewa Bienkowska. “Victim participation in proceedings and satisfaction with justice in the continental systems: The case of Poland” (1993) 21:1 Journal of Criminal Justice 47.

  • Ford, David A. “Coercing victim participation in domestic violence prosecutions” (2003) 18:6 Journal of Interpersonal Violence 669.

  • Gillis, John W & Douglas E Beloof. “Next Step for a Maturing Victim Rights Movement: Enforcing Crime Victim Rights in the Courts” (2001) 33 McGeorge L Rev 689.

  • Starkweather, David A. “Retributive Theory of Just Deserts and Victim Participation in Plea Bargaining, The” (1991) 67 Ind LJ 853.

  • Tobolowsky, Peggy M. “Victim participation in the criminal justice process: Fifteen years after the President’s Task Force on Victims of Crime” (1999) 25 New Eng J on Crim & Civ Confinement 21.

  • Welling, Sarah N. “Victim participation in plea bargains” (1987) 65 Wash ULQ 301.

  • Yaroshefsky, Ellen. “Balancing Victim’s Rights and Vigorous Advocacy for the Defendant” (1989) Ann Surv Am L 135.

  • Fletcher, George P. “The Place of Victims in the Theory of Retribution.” Buffalo Criminal Law Review 3, no. 1 (1999): 51–63.

  • Hallevy, Gabriel. “Victim’s Complicity in Criminal Law.” IJPS 2 (2006): 72.

  • Hurd, Heidi M. “Blaming the Victim: A Response to the Proposal That Criminal Law Recognize a General Defense of Contributory Responsibility.” Buffalo Criminal Law Review 8, no. 2 (2005): 503–522.

  • Moore, Michael. “Victims and Retribution: A Reply to Professor Fletcher.” Buffalo Criminal Law Review 3, no. 1 (1999): 65–89.

  • Department of Justice Canada, Victim Participation in the Plea Negotiation Process in canada

  • "Family of murder victim can sue City of Montreal, Supreme Court rules", CBC News (13 October 2017), online: <www.cbc.ca/beta/news/canada/montreal/maria-altagracia-dorval-montreal-supreme-court-1.4353436>