VICTIMS' BILL OF RIGHTS, 1995
EXPLANATORY NOTE
Section 1 of the Bill contains definitions of "crime" and "victim".
Section 2 of the Bill sets out principles that should apply to the treatment of victims of crime.
Section 3 of the Bill provides that a person convicted of a prescribed crime is liable in damages to every victim of the crime for emotional distress and for bodily harm resulting from the distress.
Section 4 of the Bill applies to civil proceedings in which a victim of crime seeks redress for harm suffered as a result of the crime. The section sets out rules favourable to victims relating to security for costs, damage awards, interest awards and costs awards.
Section 5 of the Bill provides for the maintenance of the victims' justice fund account in the Consolidated Revenue Fund. Fine surcharges imposed under the Provincial Offences Act and under the Criminal Code (Canada) are to be credited to the account. The money paid into the account is to be used to assist victims of crime.
Section 6 of the Bill amends the Evidence Act. Subsection 6 (1) of the Bill replaces section 18 of the Act with new sections 18 to 18.6. These all deal with issues relating to young witnesses: the presumption of competency (section 18), the evidence of persons under 14 (section 18.1), the corroboration of their evidence (section 18.2), the use of videotapes of the testimony of persons under 18 in certain circumstances (section 18.3), the use of screens and similar devices to protect witnesses under 18 (section 18.4), support persons for such witnesses (section 18.5), and restrictions on the personal cross-examination of such witnesses by adverse parties (section 18.6).
Subsection 6 (2) of the Bill repeals subsection 22 (2) of the Evidence Act.
Subsection 6 (3) of the Bill adds section 22.1 to the Evidence Act. This section provides that proof that a person has been convicted or discharged of a crime is proof, in the absence of evidence to the contrary, that the crime was committed by the person.
Section 7 of the Bill amends section 60.1 of the Provincial Offences Act in relation to the victims' justice fund account.
Bill1995
An Act respecting Victims of Crime
Preamble
The people of Ontario believe that victims of crime, who have suffered harm and whose rights and security have been violated by crime, should be treated with compassion and fairness. The people of Ontario further believe that the justice system should operate in a manner that does not increase the suffering of victims of crime and that does not discourage victims of crime from participating in the justice process.
Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
Definitions
Definition
1. In this Act,
"crime" means an offence under the Criminal Code (Canada);
("acte criminel")
"victim" means a person who, as a result of the commission of a crime by another, suffers emotional or physical harm, loss of or damage to property or economic harm and, if the commission of the crime results in the death of the person, includes,
(a) a child or parent of the person, within the meaning of section 1 of the Family Law Act, and
(b) a dependant or spouse of the person, within the meaning of section 29 of the Family Law Act,
but does not include a child, parent, dependant or spouse who is charged with or has been convicted of committing the crime.
("victime")
Principles
Principles
2. (1) The following principles apply to the treatment of victims of crime:
1. Victims should be treated with courtesy, compassion and respect for their personal dignity and privacy by justice system officials.
2. Victims should have access to information about,
i. the services and remedies available to victims of crime,
ii. the provisions of this Act and of the Compensation for Victims of Crime Act that might assist them,
iii. the protection available to victims to prevent unlawful intimidation,
iv. the progress of investigations that relate to the crime,
v. the charges laid with respect to the crime and, if no charges are laid, the reasons why no charges are laid,
vi. the victim's role in the prosecution,
vii. court procedures that relate to the prosecution,
viii. the dates and places of all significant proceedings that relate to the prosecution,
ix. the outcome of all significant proceedings, including any proceedings on appeal,
x. any pretrial arrangements that are made that relate to a plea that may be entered by the accused at trial,
xi. the interim release and, in the event of conviction, the sentencing of an accused, and
xii. their right under the Criminal Code (Canada) to make representations to the court by way of a victim impact statement.
3. Victims of an offence against the person under Part VIII of the Criminal Code (Canada) should, if the victim so requests, be notified of any application for release or any impending release from custody of the convicted person, including any release on parole, on unescorted temporary absence pass or in accordance with a program of temporary absence, or any escape of the person from lawful custody.
4. Victims of sexual assault should, if the victim so requests, be interviewed during the investigation of the crime only by police officers and officials of the same gender as the victim.
5. A victim's property that is in the custody of justice system officials should be returned promptly to the victim, where the property is no longer needed for the purposes of the justice system.
Limitations
(2) The principles set out in subsection (1) are subject to the availability of resources and information, what is reasonable in the circumstances of the case, what is consistent with the law and the public interest and what is necessary to ensure that the resolution of criminal proceedings is not delayed.
Regulations
(3) The Lieutenant Governor in Council may make regulations prescribing standards, other than for police services, to be followed in giving effect to the principles set out in subsection (1).
Same
(4) Standards for police services may be prescribed under paragraph 1 of subsection 135 (1) of the Police Services Act.
No new cause of action
(5) No new cause of action, right of appeal, claim or other remedy exists in law because of this section or anything done or omitted to be done under this section.
Civil Proceedings
Damages
3. (1) A person convicted of a prescribed crime is liable in damages to every victim of the crime for emotional distress, and bodily harm resulting from the distress, arising from the commission of the crime.
Presumption
(2) The following victims shall be presumed to have suffered emotional distress:
1. A victim of an assault if the victim is or was a spouse, within the meaning of section 29 of the Family Law Act, of the assailant.
2. A victim of a sexual assault.
3. A victim of an attempted sexual assault.
Regulations
(3) The Lieutenant Governor in Council may make regulations prescribing crimes for the purposes of subsection (1).
Interpretation
(4) Nothing in this section shall be interpreted to limit remedies otherwise available under existing law or to preclude the development of remedies under the law.
Application of section
4. (1) This section applies to a civil proceeding in which the victim of a crime seeks redress from a person convicted of the crime for harm suffered as a result of the commission of the crime.
Security for costs
(2) A judge shall not make an order under the rules of court requiring a victim to provide security for costs unless the judge, having considered the spirit and purpose of this Act, considers that it is necessary to do so in the interests of justice.
Damages
(3) Subject to subsection (4), a judge shall not consider the sentence, if any, imposed on a convicted person when ordering that person to pay damages in respect of harm suffered by a victim of the crime.
Exception: punitive damages
(4) A judge shall take the sentence, if any, imposed on a convicted person into consideration before ordering that person to pay punitive damages to a victim.
Interest awards
(5) A judge shall not exercise his or her discretion under clause 130 (1) (a) of the Courts of Justice Act to disallow an award of interest to a victim unless the judge, having considered the spirit and purpose of this Act, considers that it is necessary to do so in the interests of justice.
Solicitor and client costs
(6) A judge who makes an order for costs in favour of a victim shall make the order on a solicitor and client basis, unless the judge considers that to do so would not be in the interests of justice.
Victims' Justice Fund Account
Victims' justice fund account to be maintained
5. (1) The victim assistance fund account referred to in subsection 60.1 (4) of the Provincial Offences Act, as it read immediately before subsection 8 (1) of this Act comes into force, is continued as the victims' justice fund account and shall be maintained as a special account in the Consolidated Revenue Fund.
Amounts to be credited to account
(2) The victims' justice fund account shall consist of,
(a) fine surcharge amounts credited to the account under subsection 60.1 (4) of the Provincial Offences Act;
(b) fine surcharge amounts that under section 727.9 of the Criminal Code (Canada) the Lieutenant Governor in Council directs be credited to the account;
(c) amounts credited to the account in accordance with an appropriation by the Legislative Assembly of Ontario;
(d) donations made by persons to the Crown to be credited to the account.
Special purpose account
(3) The money paid into the victims' justice fund account is money paid to Ontario for a special purpose within the meaning of the Financial Administration Act.
Use of victims' justice fund account
(4) The money paid into the victims' justice fund account shall be used to assist victims, whether by supporting programs that provide assistance to victims, by making grants to community agencies assisting victims or otherwise.
Payments out of account
(5) Subject to the approval of Management Board of Cabinet, payments may be made out of the victims' justice fund account for the purpose described in subsection (4).
Expenses
(6) The Lieutenant Governor in Council in each year may authorize the payment out of the victims' justice fund account to the Consolidated Revenue Fund generally of an amount for the payment of expenses in connection with the administration of the account.
Regulations
(7) The Lieutenant Governor in Council may make regulations,
(a) establishing criteria that must be met by a program or agency before a payment is made out of the victims' justice fund account to support the program or agency;
(b) establishing a formula or other basis according to which money in the victims' justice fund account is to be paid out.
Evidence Act
6. (1) Section 18 of the Evidence Act is repealed and the following substituted:
Presumption of competency
18. (1) A person of any age is presumed to be competent to give evidence.
Challenge, examination
(2) When a person's competence is challenged, the judge, justice or other presiding officer shall examine the person.
Exception
(3) However, if the judge, justice or other presiding officer is of the opinion that the person's ability to give evidence might be adversely affected if he or she examined the person, the person may be examined by counsel instead.
Evidence of witness under 14
18.1 (1) When the competence of a proposed witness who is a person under the age of 14 is challenged, the court may admit the person's evidence if the person is able to communicate the evidence, understands the nature of an oath or solemn affirmation and testifies under oath or solemn affirmation.
Same
(2) The court may admit the person's evidence, if the person is able to communicate the evidence, even though the person does not understand the nature of an oath or solemn affirmation, if the person understands what it means to tell the truth and promises to tell the truth.
Further discretion
(3) If the court is of the opinion that the person's evidence is sufficiently reliable, the court has discretion to admit it, if the person is able to communicate the evidence, even if the person understands neither the nature of an oath or solemn affirmation nor what it means to tell the truth.
Corroboration not required, witness under 14
18.2 (1) Evidence given by a person under the age of 14 need not be corroborated.
No mandatory warning
(2) It is not necessary to instruct the trier of fact that it is unsafe to rely on the uncorroborated evidence of a person under the age of 14.
Videotaped testimony, witness under 18
18.3 (1) A videotape of the testimony of a witness under the age of 18 that satisfies the conditions set out in subsection (2) may be admitted in evidence, if the court is of the opinion that this is likely to help the witness give complete and accurate testimony or that it is in the best interests of the witness.
Conditions
(2) The judge or other person who is to preside at the trial and the lawyers of the parties to the proceeding shall be present when the testimony is given, and the lawyers shall be given an opportunity to examine the witness in the same way as if he or she were testifying in the courtroom.
Screen, support person
(3) Subsection 18.4 (1) and section 18.5 apply with necessary modifications when testimony is being videotaped.
Effect of admitting videotape
(4) If a videotape is admitted under subsection (1), the witness need not attend or testify and shall not be summoned to testify.
Exception
(5) However, in exceptional circumstances, the court may require the witness to attend and testify even though a videotape of his or her testimony has been admitted in evidence.
Videotaped interview
(6) With the leave of the court, a videotape of an interview with a person under the age of 18 may be admitted in evidence if the person, while testifying, adopts the contents of the videotape.
Hearsay exceptions preserved
(7) Subsection (6) is in addition to any rule of law under which a videotape may be admitted in evidence.
Screen, witness under 18
18.4 (1) A witness under the age of 18 may testify behind a screen or similar device that allows the witness not to see an adverse party, if the court is of the opinion that this is likely to help the witness give complete and accurate testimony or that it is in the best interests of the witness, and if the condition set out in subsection (4) is satisfied.
Closed-circuit television
(2) The court may order that closed-circuit television be used instead of a screen or similar device if the court is of the opinion that,
(a) a screen or similar device is insufficient to allow the witness to give complete and accurate testimony; or
(b) the best interests of the witness require the use of closed-circuit television.
Same
(3) If the court makes an order under subsection (2), the witness shall testify outside the courtroom and his or her testimony shall be shown in the courtroom by means of closed-circuit television.
Condition
(4) When a screen or similar device or closed-circuit television is used, the judge and jury and the parties to the proceeding and their lawyers shall be able to see and hear the witness testify.
Support person, witness under 18
18.5 (1) During the testimony of a witness under the age of 18, a support person chosen by the witness may accompany him or her.
Court's discretion
(2) If the court determines that the support person chosen by the witness is not appropriate for any reason, the witness is entitled to choose another support person.
Examples
(3) The following are examples of reasons on the basis of which the court may determine that the support person chosen by a witness is not appropriate:
1. The court is of the opinion that the support person may attempt to influence the testimony of the witness.
2. The support person behaves in a disruptive manner.
3. The support person is also a witness in the proceeding.
Personal cross-examination by adverse party
18.6 (1) The court may prohibit personal cross-examination of a witness under the age of 18 by an adverse party if the court is of the opinion that such a cross-examination,
(a) would be likely to affect adversely the ability of the witness to give evidence; or
(b) would not be in the best interests of the witness.
Alternatives
(2) If the court prohibits personal cross-examination by the adverse party, the cross-examination may be conducted in some other appropriate way (for example, by means of questions written by the adverse party and read to the witness by the court).
(2) Subsection 22 (2) of the Act is repealed.
(3) The Act is amended by adding the following section:
Proof of conviction or discharge
22.1 (1) Proof that a person has been convicted or discharged anywhere in Canada of a crime is proof, in the absence of evidence to the contrary, that the crime was committed by the person, if,
(a) no appeal of the conviction or discharge was taken and the time for an appeal has expired; or
(b) an appeal of the conviction or discharge was taken but was dismissed or abandoned and no further appeal is available.
Same
(2) Subsection (1) applies whether or not the convicted or discharged person is a party to the proceeding.
Same
(3) For the purposes of subsection (1), a certificate containing the substance and effect only, omitting the formal part, of the charge and of the conviction or discharge, purporting to be signed by the officer having the custody of the records of the court at which the offender was convicted or discharged, or by the deputy of the officer, is, on proof of the identity of the person named as convicted or discharged person in the certificate, sufficient evidence of the conviction or discharge of that person, without proof of the signature or of the official character of the person appearing to have signed the certificate.
Provincial Offences Act
7. (1) Subsection 60.1 (4) of the Provincial Offences Act, as enacted by the Statutes of Ontario, 1994, chapter 17, section 130, is amended by striking out "victim assistance" in the second and third lines and substituting "victims' justice".
(2) Subsections 60.1 (5) and (6), clause 60.1 (7) (b) and subsection 60.1 (8) of the Act, as enacted by the Statutes of Ontario, 1994, chapter 17, section 130, are repealed.
Commencement and Short Title
Commencement
8. This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.
Short title
9. The short title of this Act is the Victims' Bill of Rights, 1995.