As part of its “law-and-order” agenda, the Harper Administration recently introduced a “Victims Bill of Rights.” According to CBC News, the proposed reform would alter portions of the Canada Evidence Act so that spouses could decline testifying in certain cases. The proposal codifies a number of rights including victims being allowed to request “a copy of a bail order, a probation order or the details of a conditional release.”
The preamble of the legislation states, it’s “important that victim’s rights be considered throughout the criminal justice system.” It’s hard not to agree with this sentiment. Victims should be the center point of any process to achieve justice. After all, they are ostensibly the reason for punishment to begin with. But the “Victims Bill of Rights” is not some change of heart in the Canadian government. It’s unlikely to restore dignity to the criminal justice system as it neglects the root problem. This is Harper and the conservatives throwing a bone to susceptible observers.
The Victims Bill of Rights has come under the microscope by interested players. Some have received it favorably while others are more critical. Criminal lawyer David Butt says the reform is a step in the right direction, and agrees with the sentiment that victims “are at the core of every crime committed.” In his opinion, a human legal system should treat those most harmed as “whole people, deserving equal concern and respect.”
Butt takes a more idealistic view on achieving justice in the government court system. With his talk of dignity and respect, the plea comes off as leftist, and thus unrealistic. Not every victim will be wholly compensated and not every criminal brought to justice. That’s just the reality of man-made things. Adding layers of bureaucracy or rules on top of an already convoluted system runs the risk of making the process worse. Morals can often be the driving force of action, but not everything can be implemented in such a way that everybody sleeps soundly at night.
Even so, Butt is correct on the idea that victims should serve as the guiding star on the path toward justice. To understand why, you need only read the countervailing viewpoint by Anthony Moustacalis, President of the Criminal Lawyers’ Association. Moustacalis is none too happy with the Harper Administration’s proposal. He calls it a “hodge-podge of aspirational cant and window-dressing” that is “short on meaningful content.”
Healthy criticism of new measures proposed by government is always a good thing. Intentions and effectiveness should always be questioned. There is far too much room for abuse when ideas are concocted in the bowels of bureaucracy. Maliciousness may not always be at play, but it’s a virtual guarantee that hubris underpins any state legislation.
Moustacalis is correct to question the efficacy of the Victims Bill of Rights. But “cui bono?” goes both ways; and the fact that Moustacalis heads a group with a strong financial interest in having the state’s favor should give way to pause. Motives are tricky things when livelihoods are at stake.
Moustacalis says it’s a mistake to put victims at the forefront of the criminal justice system. Not only does the reform promote the notion of “victimhood,” but it also erroneously skewers the public’s perception of government courts. To Moustacalis, the Victims Bills of Rights undermines “the presumption of innocence” and “creates cruelly unfair expectations.”
It’s hard to argue that government decrees don’t create an entitlement mentality via a promised benefit. But Moustacalis approaches the issue from the wrong angle. He believes government should be the prime mover in the crime and punishment process, and writes,
[I]t is the state – through well-funded police forces and prosecution offices – that contests the innocence of a defendant. The trial process, in fact, does not even recognize the existence of a victim until a crime has been proved.
This is all true. But this status quo is exactly what’s wrong with Canada’s criminal justice, and every criminal justice system lorded over by the state. Government as the centerpiece removes the most important aspect of any dispute: the violated rights of the victim. In the realm of economics, you can’t consume what hasn’t been produced first. In law, the harm done to the victim comes first; therefore, it should be the victim who initiates any kind of recourse.
Government turns justice on its head by putting itself first, above the plight of those harmed. In a free society, there would be no hijacking of the law to benefit the state. All criminal proceedings would begin with an accusation on the part of the victim. As Murray Rothbard writes,
[I]n the libertarian society, there are, as we have said, only two parties to a dispute or action at law: the victim, or plaintiff, and the alleged criminal, or defendant. It is the plaintiff that presses charges in the courts against the wrongdoer.
The state monopolizes law enforcement for a number of reasons; the most important being the ability to control society and quell violent dissent. It also forces the populace to look to government courts and the police force for protection – an action that implants in the mind a sense of reliance. With little in the way of legal recourse against state authorities, the so-called political leaders can sit comfy as they plunder the masses.
Just recourse in a society based off property rights involves the victim being compensated for harm done, not the government. Recently in Iran, there was a rare instance of how such a process could play out. A man named Balal was convicted of stabbing 18-year-old Abdollah Hosseinzadeh to death in a careless street fight. Under Iranian law, the parents of Hosseinzadeh are entitled to inflict the death penalty upon the killer. When Balal was ready to be put to death, instead of kicking the chair out from under his feet to let him breathe his last breath in the grip of a noose, Hosseinzadeth’s mother forgave him and let him down. Balal was spared through mercy. If the incident occurred under the authority of a Western-style legal system, you can be assured the victim’s family wouldn’t have such an option. Forgiveness couldn’t be given. The government would do what it does best: kill mercilessly.
The Victims Bill of Rights proposed by the Harper Administration would confer some benefits to the harmed, but it doesn’t address the extreme injustice of taking retribution out of the hands of those deserving. Until justice is rendered through the decisions of the real victims, the state is the main beneficiary of the process. Everything else only holds the facade of being just.