Wednesday, 11 January 2012

Rights of Victims and Rights of Criminals: It's not Either-Or

     Among the rhetoric surrounding the Conservative's Bill C-10, the misleadingly named "Safe Streets and Communities Act", is the following sentiment (quoted without permission or attribution from an email I received yesterday):
"For too many years, our criminal justice system was going in the wrong direction -- it focussed more on the rights of criminals than the rights of victims."
     (Never mind that for all of those "too many years", Canadian crime rates have been consistently headed in a downward direction, which seems kind of like the right direction to me.)

     The rhetoric here is lovely. Of course we should care more about victims than criminals. Who would disagree with that? But unfortunately, the thinking is rather dangerously wrong, in two ways.

     To begin with, what are we talking about when we refer to the "rights of victims"? There are two ways we can answer this. First, there are the rights which everyone has but that were violated by the crime that made them victims in the first place. Second, there are additional rights that may have been gained as a result of having been victimized, such as rights to reparations and so forth.

     The first set of rights are important, but calling them victim's rights rather misses the point, at least with respect to the criminal justice system. It's simply too late to protect a victim's rights once they've already been victimized. The best we can do for these rights is to adopt policies that will reduce crime, so that the rights of people not to be victims are protected. In an ideally law-abiding society, there would be no victim's rights because there would be no victims.

     The second set of rights are somewhat less clearly established in criminal law. The right to be made whole again, or to have the harm from the crime undone as much as possible, is already a part of civil tort law, and victims of crime are usually free to sue the offenders for damages, so it's kind of a red herring to complain that the criminal justice system fails to protect these victim's rights. Even so, Canadian criminal courts do sometimes dabble in restorative justice, and judges are generally free to craft conditional sentences that encourage reconciliation and healing. (Or at least, they are for now; Bill C-10 places greater limits on a judge's flexibility and eliminates conditional sentences as an option in many cases, just one of many reasons I think this legislation is a Very Bad Idea.)
     But there are other rights we might say a victim has in virtue of being a victim, such as a right to see wrongdoers punished, or a right to be heard on the matter of sentencing. Canadian courts already provide victims with the opportunity to provide a victim impact statement to be considered in sentencing, but they do not recognize victims as having a special right to see those who have wronged them punished. Nor should they; the purposes of sentencing in Canada are generally to prevent future crimes (whether by deterring would-be offenders with a credible threat of punishment, or by locking those declared as Dangerous Offenders away where they can do no more harm), to facilitate rehabilitation of offenders, and to convey society's disapproval of the criminal act. Vengeance is simply not a legal consideration, however much a victim may wish it.
     Should vengeance on behalf of the victim be one of the functions of sentencing, though? I rather strongly think it should not. For one thing, I'm not sure there's a meaningful moral distinction between wanting to see someone suffer because they've legally wronged you and wanting to see someone suffer because you have some other reason for not liking them (perhaps they've harmed you in a perfectly lawful fashion), and even if such a distinction exists, I'm not convinced that the state owes it to its citizens to act upon such wishes, however well-founded those wishes might be. Indeed, I think the state owes it to its citizens not to favour personal wishes of harm against other citizens for any reason whatsoever. That the state ought to be scrupulously impartial in the administration of justice is something I'd hope everyone would agree.
     Moreover, as sympathetic as I am to the suffering of a victim, I do not subscribe to the idea that victims are somehow a better judge of what an offender deserves than impartial non-victims. When debating capital punishment, for example, which I oppose, I often hear people say, "Well, I bet you'd feel differently if someone you loved was murdered!" Indeed I probably would, but I'm under no illusions that my judgment would be especially sound after so traumatic experience. People often make very bad decisions in such a state, and I happen to think it's a good thing we do not base sentencing on what the victim thinks the offender deserves.

     So, the special rights of victims as victims are not, I think, something that the criminal justice system really needs to focus on at all, since there already exists a well-developed tort law system that serves this purpose, and there is no legal right to vengeance per se. If there are victims' rights that our system needs to focus on, then, it's the right not to be a victim in the first place.

     And that is exactly why our criminal justice system focusses so much attention on the rights of the accused. The criminal justice system is concerned with what to do to people accused of crimes; it is not concerned with what is to be done to victims. In other words, the system need not worry about the rights of the victim, because it is for the most part not even in a position to infringe on those rights. (True, being compelled to testify as a witness may be a hardship, but that's a problem for all witnesses and not just victims, and the courts do try to balance the rights of witnesses with the evidentiary needs of the court.) In contrast, the system is in a position to intrude upon the rights of the accused in a very severe way, and so it's entirely appropriate that the rights of the accused be treated with the utmost respect.

     I've practiced criminal law (and expect to practice again soon, once this chemotherapy nonsense is out of the way), and I frequently find myself having to explain both to clients and to the general public that my job as a lawyer is not to let criminals get away with crimes. Rather, it's to prevent the state itself from becoming a criminal. The state may only imprison or otherwise punish someone if it can prove beyond a reasonable doubt the guilt of the accused, and this is something we insist upon for the benefit of all citizens, not merely those who happen to be guilty of crimes. It is not only the guilty who are accused of crimes, after all, and while it may be the case that the majority of those accused are in fact guilty, there's a reason why this is so: the Crown knows that it must prove its case, and so it generally doesn't try to charge people it doesn't expect to be able to convict. If we relaxed that standard, if the courts didn't insist on proof someone is guilty before administering punishment, there would be a lot more innocent people charged.

     So the quote I started this posting with is absolutely dead wrong. It isn't a question of favouring criminals' rights over those of victims, because the rights of the accused are the rights of victims. They are the rights of each of us not to be made into victims of injustice.


  1. Very nice article.

    The first thing that jumped into my head was the failure to define criminal and victim. Criminals are frequently victims, and vice versa. Victimizing another does not magically make one's own victimization acceptable or appropriate.

    I really like your comment about stopping the system from being the criminal. A 15 year prison sentence for a wrongful charge has huge implications for the rest of an individual's life, and I can't imagine a young person being stuck back into society at the age of 35 without any life or work experience having many options to make ends meet that don't involve crime.

  2. Thanks, Ted.

    In fact, that's one of the things that worries me most about Bill C-10. Well, okay, there are a lot of things that worry me a great deal about this bill, so it's really hard to decide what's MOST worrisome. But yes, the increased emphasis on incarceration is bound to be a bad thing, whether or not the convicted person is actually guilty, for just the reasons you cite. As well, spending a long time in a community composed largely of criminals is bound to make some of the values and attitudes rub off on a significant number of inmates, which is part of the reason why recidivism rates tend to be higher with punitive sentencing.

    Another thing to bear in mind is that, at least for the kinds of offences that are most often punished with jail time, deterrence doesn't really work very well. The kind of person who holds up a convenience store or gets into drugs usually isn't carrying out a careful and rigorous cost-benefit analysis, at least not one that looks ahead more than a couple of hours. Harsher penalties in such cases are essentially just spiteful ("bad people DESERVE to suffer!"), rather than aimed at actually protecting society from harm.