Communiques

Victim's Rights- A Voice Not a Veto

In 1998 the Standing Committee on Justice and Human Rights released a report Victim's Rights- A Voice Not a Veto which recommended an amendment to the Criminal Code that would allow a judge to ban the publication of any identifying information concerning a victim, a complainant or a witness where the judge is satisfied that publication would cause these individuals "undue hardship" and the publication ban would not interfere with the accused's rights or the proper administration of justice. Ad IDEM opposes this recommendation. As is noted in the Standing Committee's report the courts already have adequate non-statutory jurisdiction to impose publication bans. In addition s. 486(3) of the Code contains additional wide powers which, in the proper circumstances, would allow a judge to ban the publication of the identity of a complainant or a witness. 

The courts have been careful to point out that the protection of freedom of expression as embodied in s.2(b) of the Charter of Rights and Freedoms has equal status with other Charter protected rights such as the right to a fair trial. The courts have long held that "undue hardship" is not enough to abrogate a Charter right unless a principle of superordinate importance ( such as that which would amount to a real and substantil risk of a miscarriage of justice) is at stake. The Committee appears to be recommending both the facilitation and expansion of the most intrusive and extensive weapon possessed by those opposed to a particular court process being open; that is a the ban of publication of what occures in our criminal justice system for all time. 

Ad IDEM is of the view that the inherent powers of the court, along with those specific powers granted to judges under the Criminal Code (including the power to hold all or part of a hearing in private, where it is in the interests of the adminisration of justice to do so,) are more than sufficient to protect the interests of those caught up in our open system of criminal justice. A further attempt at legislative intrusion on our open court system is neither warranted nor consistent with the protections all Canadians enjoy under the Charter of Rights and Freedoms.