Robert Karrass discusses victim rights and a tragic case where those rights were violated.
The Lawyer’s Daily, June 2017
Imagine you are the victim of a violent crime., Imagine that you have summoned the courage to confront your attacker and testify against him (or her) in court. Now imagine that for no defined or specific reason, you are shackled and taken to jail where you spend five nights. And to make matters worse, you are transported to and from court in the same police van as your attacker.
As unbelievable as this scenario is, it is exactly what happened to Jane Doe (a publication ban prevents the release of Jane’s name despite the fact that she has since passed away in unrelated and accidental circumstances).
On June 5th 2015, while giving evidence at a preliminary inquiry in Edmonton, a 28-year-old aboriginal woman, the victim of a violent sexual assault (perpetrated by Lance Blanchard) was ordered into custody because she presented in a condition “unsuitable for testifying”. For unknown reasons, Jane kept falling asleep and had trouble focusing and answering questions; concerned about her physical and mental state and keen to get Jane Doe’s testimony against her attacker, Lance Blanchard, crown attorney Patricia Innes requested and Provincial court Judge Bodnarek ordered that Jane be taken into custody according to s. 545(1)(b) of the Criminal code.
On April 23, 2015 (weeks prior to this incident) the Canadian Victims Bill of Rights (CVBR) was assented to (although it only came into force on July 23, 2015) which sets out (among other things) a victim’s rights to have their security considered by the appropriate authorities in the criminal justice system and to have reasonable and necessary measures taken by the appropriate authorities in the criminal justice system to protect them from intimidation and retaliation. However, the CVBR is silent on the definition of security.
While criminal law is generally not about making a victim whole, but rather about assigning blame and determining appropriate punishment, the criminal justice system and the state should never cause additional harm to victims by incarcerating them, absent exceptional circumstances (such as obstruction of justice, perjury, contempt of court, etc.).
S. 545(1)(b) states:
Where a person, being present at a preliminary inquiry and being required by the justice to give evidence, having been sworn, refuses to answer the questions that are put to him, without offering a reasonable excuse for his failure or refusal, the justice may adjourn the inquiry and may, by warrant in Form 20, commit the person to prison for a period not exceeding eight clear days or for the period during which the inquiry is adjourned, whichever is the lesser period.
S. 545(1)(b) suggests that there are circumstances in which a witness who refuses to answer the questions put to her can be remanded into custody, however, it does not follow that the power enumerated in this section was intended to be applied to victims of crime and/or to individuals experiencing physical or mental health issues.
We do not know why Jane was falling asleep and was in a state unsuitable for testifying, but it is interesting to note that 94% of women experienced these symptoms of Posttraumatic Stress Disorder (PTSD) during the two weeks immediately following the sexual assault, according to B.O. Rothbaum, and E.B. Foa, D. S. Riggs, T. Murdock, and W. Walsh, in their 1992 article A prospective examination of post-traumatic stress disorder in rape victims, published in the Journal of Traumatic Stress.
About 30% of these women still report symptoms 9 months later, according to B.O Rothbaum and E.B. Foa, in their 1992 article about subtypes of posttraumatic stress disorder and duration of symptoms, Posttraumatic Stress Disorder: DSM-IV and Beyond, published by the American Psychiatric Press
Symptoms of Posttraumatic Stress Disorder (PTSD) in sexual assault victims can include: repeated thoughts of the assault; memories and nightmares; avoidance of thoughts, feelings, and situations related to the assault; increased arousal (for example, difficulty sleeping and concentrating, jumpiness, irritability); and fatigue resulting in cognitive impairment, mood disturbance, and reduced quality of life according to the U.S. Department of Veteran.
The crown in this case asked the judge to remand Jane. She was not a party to the criminal proceedings and did not have a lawyer; no one stood up for her rights. It seems likely that had Jane had a lawyer, such an abuse of process would not have taken place.
An independent investigation into the treatment of Jane is underway but this situation raises a number of significant questions regarding victim rights, mental health training for judicial officers, and also whether the seminal case of R. v. Gladue (in which the SCC directed the courts to take into account non-custodial options, “with particular attention to the circumstances of Aboriginal offenders”) applies in dealing with aboriginal victims as well.