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Page 4 June 26, 2017 • Law Times www.lawtimesnews.com NEWS NEWS NEWS Proposed changes could be useful for complainants Bill proposes independent ombudsman for victims BY DALE SMITH For Law Times A new Conservative private member's bill aims to turn the Fed- eral Ombudsman for Victims of Crime into an inde- pendent office, no longer report- ing to the Minister of Justice, lawyers say. Bill C-343, An Act to es- tablish the Office of the Fed- eral Ombudsman for Victims of Criminal Acts, separates the existing ombudsman from the federal Justice Department, with a mandate to provide support and assistance for victims of criminal acts and their families, to help them access federal pro- grams and services for victims, and to review complaints made against federal bodies regard- ing those services as well as to review legislation and policies relating to victims' rights. It enhances the changes ad- opted in 2015 by the former fed- eral Progressive Conservative government, with the Canadian Victims Bill of Rights. The proposed changes could be useful for complainants, they say, but there are also concerns about the potential to under- mine the presumption of inno- cence of the accused. "To me, it seems like a good idea, much for the same rea- son that the Public Prosecution Service was moved out of the Department of Justice," says Mi- chael Spratt, partner with Aber- gel Goldstein & Partners LLP in Ottawa. "It's never desirable to have the person tasked with inves- tigating complaints that may involve Department of Justice lawyers or government action be housed under the umbrella of the people that they may be ask- ing hard questions on." Spratt says there are benefits of notifications to victims and their families about court dates and parole hearings, as well as having fully informed partici- pants in the justice system. Experiences of complainants and victims should be taken into account with law reform, he says. However, he says, it would be preferable if the federal govern- ment took a similar approach to making other systemic changes that are needed. "Interests of complainants and victims are our priority . . . but it would be good to see cor- responding legislation or posi- tions for ombudsman or law reform commissions to take a systemic look at all of our laws in a broader context, in an inde- pendent way and report to Par- liament as well," says Spratt. There is hope that the office could help complainants better understand the court process. "Oftentimes, complainants will look to the Crown as their lawyer — that's a fundamental misunderstanding," says Anne London-Weinstein of Weinstein and Weinstein Law Firm, who is also the president of the Defence Counsel Association of Ottawa. "The Crown is not there to represent complainants but is there to represent the Minister of Justice to prosecute a case and provide evidence. There may be times when the interests of the complainant are not foursquare with the interests of the Crown, so if there's a place where they can go and they can feel that they've been aggrieved and an explanation can be made to them, that's important as well." London-Weinstein says she encountered situations like this when she was a Crown prosecu- tor, where policies around things such as zero tolerance for do- mestic abuse cases would con- travene a complainant's wishes to not testify. "As a former Crown, I can tell you that you have to be free to call your case the way you see fit and to exercise your discretion," says London-Weinstein. "The desires and wants of the victims are something that you have to consider, but, ultimately, you may have to decide the case in a way that doesn't favour your complainant — that's your job. You want Crowns to be able to do that without chill." Federal MP Sylvie Boucher (Beauport–Côte-de-Beaupré– Île d'Orléans–Charlevoix, Que.), says she sponsored this bill not because of a specific case but just to ensure that the job of rec- ognizing the rights to victims of criminal acts started by the Conservative government con- tinues to move forward. "The actual Liberal govern- ment does not put victims of criminal acts first at all," says Boucher. "It's only fair. Victims should be able to be equally rep- resented as criminals." London-Weinstein says the fact that the Victims Bill of Rights includes complainants under the definition of "victim" before there has been a finding of guilt gives her pause. "We use language in law, and I see that as a subtle undermin- ing of the presumption of inno- cence," says London-Weinstein. "[W]e've gone from a place where complainants were com- plete strangers to the litigation, and I'm not saying that that is a place where the administration of justice was best served, but in any balancing of rights . . . there doesn't have to be a diminishing of the rights of the accused." Michael Crystal, partner with Spiteri & Ursulak LLP in Ottawa, thinks an independent office would be beneficial on the whole, given that Crowns already have a difficult time balancing the duty to prosecute and upholding the rights of complainants, but he also has concerns about the balancing of rights. "We do not want to imperil in any way the presumption of innocence by basically institu- tionalizing the victims of crime, which is to say that we shift the burden to the accused person to say that he's not guilty," says Crystal. "We have to be very careful to maintain the integ- rity of our justice system and the trial process. That is what I'm concerned about." Crystal says the justice sys- tem is currently going through an "upgrade." "A lot of it is very positive," he says. "We're moving the justice system really into the 21st cen- tury, but just as we have now rec- ognized a need for institution- alized advocacy for victims of crime, we should also be doing the exact same on the other side for wrongful convictions." A spokesperson for federal Justice Minister Jody Wilson- Raybould said the government position would be announced when the bill is at Second Read- ing, which would be shortly after Parliament returns in Septem- ber. Current ombudsman Sue O'Sullivan was unavailable to comment on the bill. LT Anne London-Weinstein says, 'Oftentimes, complainants will look to the Crown as their lawyer — that's a fundamental mis- understanding.' 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