Saturday, April 05, 2014

Bill C-32: Is This Even Necessary?

As I start to review the content of Bill C-32, the so-called "Victim's Bill of Rights" legislation, I find myself wondering if this piece of legislation is even meaningful.  

The first thing that made me wonder about this was the following:  
11. Sections 380.3 and 380.4 of the Act are repealed.
I went on a fishing expedition and dug up the to be repealed sections of the Criminal Code, and what do I find but the following:

  • 380.3 (1) When an offender is convicted, or is discharged under section 730, of an offence referred to in subsection 380(1), the court that sentences or discharges the offender, in addition to any other measure imposed on the offender, shall consider making a restitution order under section 738 or 739.Marginal note:
    Inquiry by court(2) As soon as practicable after a finding of guilt and in any event before imposing the sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses, the amount of which must be readily ascertainable.Marginal note:
    Adjournment(3) On application of the prosecutor or on its own motion, the court may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses, if the court is satisfied that the adjournment would not interfere with the proper administration of justice.Marginal note:
    Form for victims(4) Victims may indicate whether they are seeking restitution by completing Form 34.1 in Part XXVIII or a form approved for that purpose by the Lieutenant Governor in Council of the province where the court has jurisdiction or by using any other method approved by the court, and, if they are seeking restitution, shall establish their losses, the amount of which must be readily ascertainable, in the same manner.Marginal note:
    Reasons(5) If a victim seeks restitution and the court decides not to make a restitution order, it shall give reasons for its decision and shall cause those reasons to be stated in the record. 
    380.4 (1) For greater certainty, for the purpose of determining the sentence to be imposed on an offender, or whether the offender should be discharged under section 730, in respect of an offence referred to in subsection 380(1), the court may consider a statement made by a person on a community’s behalf describing the harm done to, or losses suffered by, the community arising from the commission of the offence.Marginal note:
    Procedure(2) The statement must(a) be prepared in writing and filed with the court;(b) identify the community on whose behalf the statement is made; and(c) explain how the statement reflects the community’s views.Marginal note:Copy of statement 
    (3) The clerk of the court shall provide a copy of the statement, as soon as practicable after a finding of guilt, to the offender or counsel for the offender, and to the prosecutor.
Wait a second ... isn't restitution one of the "big things" in bill C-32?

Why, yes, it is:
16. Every victim has the right to have the court consider making a restitution order against the offender.17. Every victim in whose favour a restitution order is made has the right, if they are not paid, to have the order entered as a civil court judgment that is enforceable against the offend- er.
The change the ReformaTories are making here is to remove the very specific and focused clauses already present in the Criminal Code and generalizing it.  This is a very foolish thing to do.  What is "restitution", but a form of economic punishment.  For economic crimes, that isn't necessarily unreasonable.  For other forms of crime, how do they propose that a judge make an assessment?  In cases of bodily injury, is the government going to come up with a table of values of some kind?  A broken finger is so much, a broken leg is more money and so on?

To this point, the notion of restitution has been focused quite clearly in specific areas of law where the concept of restitution is relatively clear.  In making this change, the Harper Government has turned it into something which is effectively an arbitrary additional punishment to be levied on top of whatever other punishment the court metes out.

Then there is this little gem, which rewords the sentencing guidelines in the Criminal Code:

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused byunlawful conduct;
(2) Paragraph 718(f) of the Act is replaced by the following:(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
This is changed from the following:
718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:(a) to denounce unlawful conduct;(b) to deter the offender and other persons from committing offences;(c) to separate offenders from society, where necessary;(d) to assist in rehabilitating offenders;(e) to provide reparations for harm done to victims or to the community; and(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
  • R.S., 1985, c. C-46, s. 718;
  •  R.S., 1985, c. 27 (1st Supp.), s. 155;
  •  1995, c. 22, s. 6.
  • This is a completely unnecessary change to the sentencing guidelines part of the Criminal Code.  What it fundamentally attempts to do is write into the laws of this country a philosophy that the Harper Government has been trying to ram down Canadians' throats for years - the idea that criminal justice is about punish, Punish, PUNISH.  We already know, from the example of the United States, that when you make the punishments all the more harsh, that you will simply create a situation where you have more and more people in prison, and those caught in that system have nothing to lose.

    Then, as if to drive home my point for me, the Harper Government inserts the following into the sentencing guidelines:
    739.1 The offender’s financial means or ability to pay does not prevent the court from making an order under section 738 or 739.
    This underscores the fundamental unreasonableness of this legislation in my view.  A restitution order is utterly meaningless if the offender has no means to meet it.  All that this will do is create another obstacle to meaningfully rehabilitating and reintegrating an offender into the broader fabric of society once their term of incarceration is completed.

    On top of it all, several provinces have already implemented significant "Victims Rights" legislation already.  It seems gratuitous for the Federal government to add this sloppy bill to the mix.  So, do we need this legislation at all?



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