With any new legislation the devil is often in the details — never more so than with this government, and never more so than with the so-called ‘Victims’ Bill of Rights’.

Read this one closely. It’s got some nasty surprises. Some background:

In April, the Conservative government unveiled Bill C-32, which they hyped as the first true effort to enhance the standing of crime victims in the justice system.

The plight of crime victims has been a staple of Conservative tub-thumping for years. Here’s how they described their intentions one year ago:

Our Government believes that the justice system exists to protect law-abiding citizens and our communities. For too long, the voices of victims have been silenced, while the system coddled criminals. Our Government has worked to re-establish Canada as a country where those who break the law are punished for their actions; where penalties match the severity of crimes committed; where the rights of victims come before the rights of criminals. Our Government will introduce a Victims Bill of Rights to restore victims to their rightful place at the heart of our justice system … For too long, the voices of victims have been silenced, while the system coddled criminals.

Let me just call nonsense on that last statement right away. The Criminal Code is full of sections and clauses that apply directly to victims and already confer many of the ‘rights’ contained in the new legislation.

To the extent that the new victims bill addresses and (modestly) expands these pre-existing measures, there’s little to complain about. Victims deserve to be treated with dignity, and to have access to information about matters that affect them.

A trial is the search for the truth. Secret evidence, non-disclosure of information, anonymous witnesses — these things can can only serve to obscure reality. Yet this is what the Victims’ Bill of Rights promises.

Perhaps the government thought that the general consensus on the right of victims to be treated with respect would prevent anyone from actually reading the bill. Because the bill actually does much, much more than the government is letting on.

Buried deep within the new bill is an amendment to the Criminal Code that would allow anonymous evidence to be introduced in court, limit disclosure of information to an accused, and curtail cross-examination.

In short, the Victims’ Bill of Right creates a kind of Canadian Star Chamber. Take a look:

486.31 (1) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. (2) The judge or justice may hold a hearing to determine whether the order should be made, and the hearing may be in private

A plain reading of this section should send a shiver down the spine of anyone who believes in the right to a fair trial.

Think about it: A private hearing that could result in anonymous witnesses and secret evidence. So much for the ability of an accused to respond to serious allegations.

The importance of an accused being able to identify and confront their accuser in a criminal proceeding cannot be understated. Without it, it’s almost impossible to defend against allegations. Details about the accuser can be vitally important to the defence. Did the accuser have a motive to lie? Does the accuser’s identity suggest an alibi?

A trial is the search for the truth. Secret evidence, non-disclosure of information, anonymous witnesses — these things can can only serve to obscure reality. Yet this is what the Victims’ Bill of Rights promises.

The ability to make full answer and defence is an animating principle of our criminal law. The rights to a fair trial and full disclosure are enshrined in our Constitution. Non-disclosure of evidence has been a central feature in almost every wrongful conviction. Yet this is what the Victims’ Bill of Rights proposes.

Once again, it appears that Canadians’ fundamental freedoms mean little to the Conservatives if they get in the way of their political agenda. By devaluing and diluting the Constitution, the Victims Bill of Rights might end up making victims of us all.

Michael Spratt is a well-known criminal lawyer and partner at the Ottawa law firm Abergel Goldstein & Partners. He has appeared in all levels of court and specializes in complex litigation. Mr. Spratt is frequently called upon to give expert testimony at the House of Commons Standing Committee on Justice and Human Rights and the Senate Standing Committee on Legal and Constitutional Affairs. He is a past board member of the Criminal Lawyers’ Association and is on the board of directors of the Defence Counsel Association of Ottawa. Mr. Spratt’s continuing work can be found at www.michaelspratt.com and on twitter at @mspratt

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