On The Limits of Victim-Centred Justice

 With Paul Bernardo’s name back in the news (this time over a move to a new prison cell), it’s time to spend a few moments discussing the role of victims of crime in the justice system, and how far it should really go. 

Criminals like Bernardo are notorious, and their names evoke strong emotional reactions in the public.  Of course, we should be aware of, and compassionate towards the victims and their families.  But, should the victims be “in the driver’s seat” around decisions regarding the punishment (and rehabilitation) of the offenders? 

I’m old enough to remember the wailing and gnashing of teeth that happened every so often when Clifford Olson would apply for parole. It was ridiculous then, and that was long before legal constructs like “dangerous offender” existed.  It was clear for Olson that this was a game - a way to get some attention in the news as the families of his victims were once again in front of cameras going on about the injustice of him even applying for parole. It was no secret that Olson was never going to get parole.

Likewise with Bernardo. He’s been locked up since 1995 - some 28 years at this point.  With a dangerous offender designation attached to his file, the odds of him ever getting parole are vanishingly close to zero. He isn’t getting out of custody, even if he applies for parole. 

Here we are today, with him being moved to a “medium security” prison, which really just means he has some freedom to move about within the walls of the prison.  He’s not getting out, nor is he eligible for the so-called “Club Fed” treatment of a minimum security institution.

The uproar here is wildly out of place, but predictably, the families are front and centre complaining about how they weren’t consulted, and how they’re being traumatized again.  Fair enough. There is nothing that will bring back their children.  But we shouldn’t confuse their distress with having an automatic right to dictate how the offender should be handled by Corrections Canada. 

The natural reaction they have is to demand that the offender be locked up and never allowed to see the light of day.  That isn’t justice, it’s revenge.  Yes, they have every right to be angry - but there is a careful line to walk between what they as victims may see as “just” and justice in the broader sense of the term. That is why complex structures like sentencing guidelines exist - what the victim may think is “just” and what is justice in the more complex context of society may well differ considerably. 

One of the points of the current system is to put a certain amount of distance between offenders and the victims.  This is important from a number of perspectives, including that of the victim. You need time and space in order to heal from whatever trauma has been inflicted upon you.  To be fair, healing is not a linear process, and you may need considerable amounts of professional help along the way.  

Should your concerns be heard when matters such as parole are discussed?  Yes, of course they should.  On the other hand, those opportunities should not be used as the sole criteria for deciding if a given offender should be granted parole.  

Similarly, we have to also recognize that there can be perverse consequences to ever harsher approaches to punishment (so-called “lock them up and throw away the key” thinking) - most offenders are serving finite sentences, and will be released when those sentences are completed.  If we deny parole in the name of assuaging the victim’s sense of being wronged, then the offender has fewer opportunities to develop the skills needed to function outside of the prison environment, and is more likely to re-offend upon release. Being vengeful here ends up meaning that someone else is likely as not to be harmed. 

That is the balance that the Corrections system has to walk - and it is far from an easy one. 

It might seem “easy” to say in the case of an offender like Bernardo, whose crimes are so egregious, that we should weld the door to his cell shut and leave it at that. But it isn’t that easy - Bernardo might be the worst possible offender, but even there, we have an obligation to ensure that punishment is proportional.

Where we fail in this balance of correction and punishment is that we do comparatively little for victims. Sure, the courts will talk about restitution, and fines can be levied, etc, but so what?  We don’t make a concerted effort to help the victims heal from the traumas that they have experienced.  Long term supports, including access to therapists, should be a part of the story here.  We need to spend as much effort on helping victims heal as we do on determining and administering punishment.

I’m not talking about “helping the victims understand the process” stuff here, I’m talking about processing trauma and learning to live with the reality of what has happened.  Far too often when notorious cases come up in the news, we get the victims on the news as well, and it’s quite clear that they are reliving the traumas of the past, and it’s worse than it was the first time around.  They need help too, and we aren’t providing it. 

Lastly, politicians and news media need to quit doing the “there’s blood in the water” routine with these cases.  Characters like Paul Bernardo make easy political fodder for politicians who want to seem like they’re “tough on crime”, but by making victims relive their trauma for political points, the politicians become part of the cycle of abuse that the victims experience. 

Bernardo’s name shouldn’t come so easily to our lips - he should be ignored, shunned, and ultimately forgotten - and our politicians and news media need to learn that lesson too. 

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?