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The Victims' Rights Amendment Act

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S.M. 2000, c. 33

THE VICTIMS' RIGHTS AMENDMENT ACT


 

(Assented to August 18, 2000)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. V55 amended

1         The Victims' Rights Act is amended by this Act.

2         The title is repealed and "The Victims' Bill of Rights" is substituted.

3         The preamble is repealed and the following is substituted:

WHEREAS victims of crimes and other offences have needs, concerns and interests that deserve consideration in addition to those of society as a whole;

AND WHEREAS all victims should be treated with courtesy, compassion and respect;

AND WHEREAS victims should have access to appropriate protection and assistance, and should be given information regarding the investigation, prosecution and disposition of crimes and other offences;

AND WHEREAS it is in the public interest to give guidance and direction to persons employed in the justice system about the manner in which victims should be treated;

AND WHEREAS persons employed in the justice system should consider the rights and views of victims in a manner that does not unreasonably delay or prejudice investigations or prosecutions, that is consistent with the law and the public interest, and that is reasonable in the circumstances of each case;

4         Part 1 is repealed and the following is substituted:

PART 1

DECLARATION OF VICTIMS' RIGHTS

DEFINITIONS

Definitions

1(1)      In this Part,

"Commissioner of Correctional Services" means the person so designated under The Correctional Services Act; (« commissaire des Services correctionnels »)

"Director of Prosecutions" means the person in the Department of Justice who is responsible for the prosecution of offences; (« directeur des poursuites »)

"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act; (« ministre »)

"nearest relative" means, with respect to a deceased victim, the adult person who is related to the victim and is first described in the following list:

(a) child,

(b) grandchild,

(c) great-grandchild,

(d) parent,

(e) sibling,

(f) niece or nephew; (« parent le plus proche »)

"offence" means a contravention of

(a) the Criminal Code (Canada), including an offence that is the subject of proceedings under the Young Offenders Act (Canada), or

(b) an Act or regulation of Canada or Manitoba prescribed by regulation; (« infraction »)

"victim" means an individual, or a corporation, organization or other entity, against whom an offence is committed or is alleged to have been committed, and

(a) where the victim is an individual who is deceased, means an individual — other than the alleged offender — who, at the time of the offence,

(i) was married to and living with the victim, or was cohabiting with the victim in a relationship for not less than one year, or

(ii) where no person qualifies under subclause (i), is the victim's nearest relative, or

(b) where the victim is an individual who is a minor or is incapable of handling his or her affairs, means the person — other than the alleged offender — who is the victim's parent, guardian, committee or substitute decision maker. (« victime »)

Exercise of rights by corporation or other entity

1(2)      When a corporation, organization or other entity is a victim, its rights under this Part may be exercised by an individual authorized by the entity.

VICTIMS' RIGHTS AND ACCESS TO SERVICES

Victims' entitlement to services by request

2(1)      A victim is entitled to the services described in this Part and may obtain services from the Department of Justice or an agency referred to in this Part at any time by

(a) requesting services from the Department or agency; or

(b) filing a general request for information with the Department or a law enforcement agency designated by the minister.

Minister may approve a form of request

2(2)      The request referred to in clause (1)(b) may be in a form approved by the minister.

Reasonable effort to be made to locate victim

2(3)      If the whereabouts of a victim who requests information under this Part is unknown to the person responsible for providing it, the person must ensure that a reasonable effort is made to locate the victim.

LAW ENFORCEMENT AGENCIES

Right to information from police agency

3         The head of a law enforcement agency responsible for investigating an offence must ensure that the agency gives the victim the following information:

(a) the rights and remedies of victims under this Act, including Part 5 (Compensation for Victims of Crime);

(b) the agency's name, address and telephone number, and the number of its file about the offence;

(c) a copy of any form approved by the minister under subsection 2(2);

(d) after a charge is laid, the form of victim impact statement designated under section 722 of the Criminal Code (Canada);

(e) how to obtain information about

(i) services available for victims, including medical, financial, housing, counselling, legal and emergency services, and

(ii) crime prevention and safety planning;

(f) how a court order of restitution may be made for any loss, damage or bodily harm suffered as a result of an offence, where the amount is readily ascertainable;

(g) how to obtain the return of any property taken as evidence by the agency in an investigation;

(h) how to obtain information about the release from custody of a person charged with an offence, and how to report a breach of a condition of release.

Right to give opinion on alternative measures and release

4         The head of a law enforcement agency responsible for investigating an offence must ensure that, where reasonably possible and at an appropriate time, the agency consults the victim on

(a) the use of pre-charge alternative measures to deal with a person alleged to have committed the offence, if alternative measures are reasonably possible in the matter; and

(b) whether a person accused of the offence should be detained to ensure the safety and security of the victim or another person, and if the accused person is released, whether he or she should be subject to any conditions.

Right to interview by same gender in sexual offence

5         If a victim of a sexual offence requests to be interviewed by officers of his or her own gender, the head of the law enforcement agency responsible for investigating the offence must ensure that the request is accommodated, if reasonably possible.

Right to confidentiality

6         If a victim requests confidentiality, the head of the law enforcement agency investigating the offence must ensure that the residential address, telephone number and place of employment of the victim and members of his or her family are not disclosed by the agency, except to the extent required

(a) by law, or for the purpose of law enforcement or prosecution or other legal proceedings; or

(b) to ensure the safety and security of any person.

Right to information about investigation of offence

7         If a victim requests information about the investigation of the offence, the head of the law enforcement agency must ensure that the agency gives the victim the following information, unless doing so could unreasonably delay or prejudice an investigation or prosecution or affect the safety or security of any person:

(a) the status of the investigation;

(b) the name of any person charged with committing the offence, and whether the person is detained in custody;

(c) if an accused person is released from custody by the agency, any conditions attached to the release;

(d) a decision not to lay a charge, and reasons for the decision.

Right to information about escape from police custody

8          If a person charged with an offence breaches a condition of his or her release from custody or escapes from the custody of a law enforcement agency, the head of the agency must ensure that the victim is promptly notified if

(a) there are reasonable grounds to believe that the person is or could be a threat to the safety or security of the victim or the victim's family; or

(b) the person is accused of, or is under investigation in respect of, a contravention of section 264 (criminal harassment) of the Criminal Code (Canada).

Right to return of property

9         If a law enforcement agency is in possession of a victim's property and the victim requests its return, the head of the agency must ensure that the property is returned to the victim promptly when the agency is satisfied it is no longer needed as evidence for an investigation or prosecution.

Minister may make agreement for services

10        The minister may make an agreement with an agency or department of the Government of Canada for a law enforcement agency under the control or supervision of the government of Canada to provide services under this Part.

Right to information about prosecution office

11        When a charge is laid in respect of an offence or the matter is referred to a Crown attorney, the head of the law enforcement agency investigating the offence must ensure that the agency gives the victim, on request, the name, address and telephone number of the office responsible for prosecuting the offence.

PROSECUTIONS

Right to information about prosecutions

12        If a victim requests information about the prosecution of a person for the offence, the Director of Prosecutions must ensure that information is given to the victim on the following topics:

(a) the possible use of alternative measures to deal with a person who is alleged to have committed an offence;

(b) the court process, including the role of the victim, prosecutor and other persons involved in the process;

(c)  the right of a witness to have an interpreter while testifying in court;

(d) the right to apply for a ban on the publication or broadcast of the identity of a victim or witness;

(e) the right of the victim, and a person providing support to the victim, to be present during any court proceeding relating to the alleged offence, subject to any court order of exclusion;

(f) the right of a prosecutor, or of a witness who is under the age of 14 years or mentally or physically disabled, to ask the court that a support person of the witness's choice be permitted to be close to the witness while testifying, as provided in section 486 of the Criminal Code (Canada);

(g) the the right of a witness who is under the age of 18 years, or mentally or physically disabled, to ask the court to be allowed to testify by closed-circuit television or behind a screen or other device in the court room, as provided in subsection 486(2.1) of the Criminal Code (Canada);

(h) how to obtain the dates, times and places of proceedings relating to a prosecution;

(i) the process for entering a plea of guilty or not guilty, including the possibility of discussions between the Crown attorney and an accused person, or his or her legal counsel, on a resolution of the charge;

(j) the possible finding by the court that an accused person is not criminally responsible by reason of mental disorder or is unfit to stand trial;

(k) the process for sentencing a person convicted of an offence;

(k.1) the possible application by a Crown attorney to the court to designate a convicted person as a dangerous offender under subsection 753(1) of the Criminal Code (Canada);

(l) the right to file a victim impact statement, and to add to it any time before the sentencing of the accused person;

(m) how to obtain assistance to complete a victim impact statement;

(n) the use of victim impact statements and pre-sentence reports in sentencing;

(o) how a court order of restitution may be made for any loss, damage or bodily harm suffered as a result of an offence, where the amount is readily ascertainable;

(p) the right of an owner of property to have it returned when it is no longer required as evidence in a prosecution;

(q) the appeal process.

Right to information about status of prosecution

13        If a victim requests information about the status of the prosecution of a person for the offence, the Director of Prosecutions must ensure that the following information is given to the victim, unless doing so could unreasonably delay or prejudice an investigation or prosecution or affect the safety or security of any person:

(a) the charge laid against the accused person;

(b) the name, address and telephone number of the office or Crown attorney that has conduct of the case;

(c) if the accused person is in custody pending trial, how the victim may comment on

(i) whether there are reasons why the accused person should be detained to ensure the safety and security of the victim or another person, or

(ii) if the person is released, whether he or she should be subject to any conditions;

(d) the date, time and place of a proceeding that relates to the prosecution and is likely to affect its outcome, including a preliminary hearing, trial and sentencing hearing;

(e) the possibility that a person who is found guilty of the offence could be ordered by the court to make restitution to any person who has suffered loss, damage or bodily harm as a result of the offence;

(e.1) the date, time and place of an application by a Crown attorney to the court to designate a convicted person as a dangerous offender under subsection 753(1) of the Criminal Code (Canada);

(f) the outcome of the prosecution, including the outcome of an application by a Crown attorney to the court to designate a convicted person as a dangerous offender under subsection 753(1) of the Criminal Code (Canada);

(g) any appeal of the result of the prosecution.

Right to be consulted about prosecution

14        At the victim's request, the Director of Prosecutions must ensure that the victim is consulted on the following, if it is reasonably possible to do so without unreasonably delaying or prejudicing an investigation or prosecution:

(a) a decision on whether to lay a charge;

(b) the use of alternative measures to deal with a person who is alleged to have committed the offence, or the accused person;

(c) staying the charge against the accused person;

(d) if the accused person is in custody, an application for release by the person;

(e) any agreement relating to a disposition of the charge;

(f) any position taken by the Crown in respect of sentencing, if the accused person is found guilty;

(g) a decision on whether to appeal, or the position of the Crown respecting any appeal by the accused person.

Right of victim to have restitution requested

15        When the amount of restitution for a victim's loss, damage or bodily harm is readily ascertainable, the Director of Prosecutions must ensure that an application for an order of restitution is made when it is reasonably possible to do so.

Right to information about corrections office

16        The Director of Prosecutions must ensure that if a person accused or found guilty of an offence is subject to supervision, control or custody under The Correctional Services Act or any other Act, the victim, on request, is given the name, address and telephone number of the office or agency that can provide information to the victim.

COURT ADMINISTRATION

Right to information about court administration

17        If a victim requests information about the courts, the person in the Department of Justice who is in charge of the administration of the courts must ensure that information is given to the victim on the following topics:

(a) the public's right of access to court proceedings;

(b) security measures and facilities, including waiting areas, available at court locations;

(c) the availability of court records relating to a proceeding, including records on the release of a person from custody;

(d) how to obtain the date, time and place of a court proceeding;

(e) how to obtain the return of property used as evidence in a court proceeding.

Right to separate waiting area at court

18        At the request of a victim who is to attend a court proceeding relating to the offence, the person in the Department of Justice who is in charge of the administration of the courts must ensure that, where it is reasonable and practicable to do so, the victim is provided with a waiting area that is separate from the area used by the accused person and witnesses.

CORRECTIONAL SERVICES

Right to information from correctional services

19(1)     At the request of a victim, and when it is reasonably possible without affecting the safety or security of any person, the Commissioner of Correctional Services must ensure that information is given to the victim about a person who

(a) is accused of the offence or has been found guilty of the offence; and

(b) is subject to supervision, control or custody under The Correctional Services Act.

Information about person accused or guilty of offence

19(2)     The information referred to in subsection (1) may include the following:

(a) whether a pre-sentence report or pre-disposition report is to be prepared in respect of the person, and if so, how the victim may comment, and the name, address and telephone number of the office in charge of preparing the report;

(b) if the person is under supervision in the community, the office or agency responsible for the supervision;

(c) if the person is subject to a supervision order, the terms and conditions of the order, including the date any condition in the order ends, and the date the order itself ends;

(d) whether the person is in custody and, if so, the name and location of the custodial facility;

(e)  dates relating to the status of the person, including the estimated date of release from custody, and the dates of temporary absences or other types of release;

(f) any terms and conditions under which the person has been or is to be released or temporarily absent without escort and, in the case of release, the general destination of the person, if known;

(g) the occurrence of any of the following:

(i) the person's escape from custody or otherwise being unlawfully at large, and his or her recapture,

(ii) the person's breach of a term or condition of a supervision order, and any action taken as a result of the breach, and

(iii) the person's death.

Right of victim to discuss release and conditions

19(3)     At the victim's request, the Commissioner of Correctional Services must ensure that any release or unescorted absence of a person referred to in clause (1)(a) or (b), and any terms and conditions of the release or absence, are discussed with the victim and the victim's opinions are considered before the release or absence occurs.

Right to warning of possible threat

20        If there are reasonable grounds to believe that a person who is subject to supervision, control or custody under The Correctional Services Act poses a threat to a victim or his or her family, the Commissioner of Correctional Services must ensure that prompt notice is given to the victim or an appropriate law enforcement agency of any information that could be relevant to the safety or security of the victim or his or her family when the person

(a) has breached the terms or completed the period of a supervision order;

(b) has escaped from a provincial custodial facility; or

(c) is about to be released from a provincial custodial facility.

Right to request meeting with offender

21(1)     A victim who wishes to explain to the offender the impact of the offence on the victim and his or her family may request the Commissioner of Correctional Services to arrange a meeting of the victim with the offender.

Commissioner to arrange meeting

21(2)     The Commissioner must arrange a meeting if he or she is satisfied that it is in the public interest to do so, having regard to such factors as the offender's

(a) willingness to accept responsibility for the offence and to participate in a meeting; and

(b) record of offences, and potential for rehabilitation.

Minister may make agreement for services

22        The minister may make an agreement with an agency or department of the Government of Canada for a correctional services agency or department under the control or supervision of the Government of Canada to provide services under this Part.

REVIEW BOARD

Definition of "Review Board"

23(1)     In this section, "Review Board" means the review board established for Manitoba under section 672.38 of the Criminal Code (Canada) to make or review a disposition in respect of an offence concerning an accused person who is found not criminally responsible by reason of mental disorder, or unfit to stand trial.

Right to information about role and process

23(2)     If the victim of an offence referred to in subsection (1) requests information about the Review Board, the Board must ensure that information is given to the victim on the following topics:

(a) the Board's role and process;

(b) when a victim may attend a hearing of the Board;

(c) how a victim impact statement may be filed under subsection 672.5(14) of the Criminal Code (Canada) for consideration by the Board;

(d) how a victim may provide information — in addition to information in a victim impact statement — to the Crown attorney who represents an Attorney General designated as a party by the Board.

Right to information about status of matter under review

23(3)     If a victim requests information about an accused person referred to in subsection (1), the Review Board must ensure that the victim is given the following information, to the extent allowed by the Criminal Code (Canada) and the Young Offenders Act (Canada):

(a) the dates, times and places of proceedings relating to a hearing of the Board;

(b) a copy of a disposition order , including an order discharging the person, made by the Board, and its stated reasons, to the extent that the Board authorizes disclosure to the victim.

LEGAL SERVICES

Right to information about legal aid services

24        At the request of a victim, the executive director of The Legal Aid Services Society of Manitoba must ensure that information is given to the victim on

(a) the availability of legal advice about the victim's rights; and

(b) the right to apply for other legal aid services.

Right to free and independent counsel

25        A victim is entitled, on request, to be given access to free, independent counsel by the Department of Justice when access to personal information about the victim is sought under section 278.3 of the Criminal Code (Canada).

VICTIMS' TIME OFF FROM EMPLOYMENT

Victim to be granted time off for parts of trial

26(1)     The employer of a person who is a victim must grant him or her, on written request, sufficient time off work, without pay, to attend the trial of the person accused of committing the offence, for the purpose of

(a) testifying;

(b) presenting a victim impact statement to the court; or

(c) observing any sentencing of the accused person.

Time off not to affect seniority or benefits

26(2)     An employer must not discharge from employment, refuse to continue to employ, or discriminate against an employee because the employee requests or takes time off under subsection (1).

Application of The Labour Relations Act

26(3)     Sections 30 (filing complaint) and 31 (hearing and remedies) of The Labour Relations Act apply, with necessary modifications, to a complaint alleging a contravention of this section or section 7 of that Act.

Calculation of loss not to include time at court

26(4)     An order of compensation made by the Labour Board under section 31 of The Labour Relations Act must not include pay for time off taken by the employee under subsection (1).

Continuity of employment

26(5)     The employment of an employee who takes time off under this section is deemed to be continuous for the purpose of vacation entitlements and pension and other benefits.

ACCOUNTABILITY AND COMPLAINT PROCESS

Definition of "director"

27         In sections 28 to 31, "director" means the person designated as the Director of Victims' Support Services under Part 3.

Complaint to director

28(1)     A victim who believes that he or she has not been dealt with in accordance with this Part may complain to the director.

Director to investigate complaint

28(2)     The director must investigate each complaint and, in consultation with officials in the justice system, take or recommend any step that the director considers necessary to address the victim's concerns and any systemic concern raised by the complaint.

Director to provide victim with report

28(3)     The director must make every reasonable effort to provide the victim with a report on the investigation within 30 days after receiving the complaint.

Content of report

28(4)     The director must ensure that the report includes

(a) any step taken or recommended to address the complaint; and

(b) the victim's right to make a complaint to the Ombudsman about the investigation or report.

Right of victim to comment on report

28(5)     The director must give the victim an opportunity to comment on the report.

When director may extend time

29(1)     The director may extend the time for providing a report for up to an additional 30 days, or for a longer period if the Ombudsman agrees, and if

(a) time is needed to consult with the victim or a third party; or

(b) owing to the extent of the investigation, additional time is required to complete the report.

Victim to be given notice of extended time

29(2)     If the time is extended under subsection (1), the director must send notice to the victim, stating

(a) the reason for the extension;

(b) when the director expects to complete the report; and

(c) the victim's right to make a complaint to the Ombudsman about the extension.

Ombudsman Act applies to any complaint

30(1)     When a victim makes a complaint to the Ombudsman, The Ombudsman Act applies.

Ombudsman to designate Crime Victim Investigator

30(2)     The Ombudsman must designate an employee of the Ombudsman as a Crime Victim Investigator to investigate complaints received under this Part.

Annual report of director regarding complaints

31(1)     The director must, within six months after the end of the fiscal year, submit a report to the minister that includes a summary of the following, without any information that could identify an individual:

(a) the complaints received from victims under subsection 28(1) in that year;

(b) how the complaints were addressed;

(c) any comments received from victims, including comments received under subsection 28(5).

Report to be tabled in the Assembly

31(2)     The minister shall lay the director's report before the Legislative Assembly within 15 days after receiving it if the Legislative Assembly is sitting and, if it is not sitting, within 15 days after the beginning of the next sitting.

GENERAL PROVISIONS

Disclosure limited by federal Act or court order

32        Nothing in this Part shall be interpreted to require or authorize the disclosure of information if its disclosure is restricted or prohibited by the Criminal Code (Canada), the Young Offenders Act (Canada) or the Criminal Records Act (Canada) or a court order.

Delegation

33        A person who is responsible under this Part to provide information may delegate the responsibility to another person under his or her administration.

Liability

34        Other than section 26, no action lies and no proceeding may be brought against any person — including a law enforcement agency, the Government of Manitoba, an agency, board, public officer or public body — for anything done or omitted to be done in good faith in the exercise or intended exercise of a duty or power that under this Part is intended or authorized to be executed or performed.

No appeal

35        An order, conviction or sentence may not be appealed on the grounds that a right granted by this Act has been infringed or denied.

Regulations

36        The Lieutenant Governor in Council may make regulations

(a) for the purpose of clause (b) of the definition "offence" in section 1, respecting Acts and regulations, and provisions of Acts and regulations, of Canada and Manitoba to which this Part applies;

(b) defining a word or expression that is used and not defined in this Part;

(c) respecting any matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the intent and purpose of this Part.

Part 1 to be reviewed within five years

37        Within five years after this Part comes into force, the minister must undertake a comprehensive review of it, and must, within one year after the review is undertaken or within such further time as the Legislative Assembly may allow, submit a report on the review to the Assembly.

5         Section 22 is amended by renumbering it as subsection 22(1) and by adding the following as subsection 22(2):

Definition of "victim"

22(2)     When an offence under the Criminal Code (Canada) is specified in a regulation made under clause 23(1)(a) and results in an individual's death, "victim" includes the individual's spouse, parent, child, brother and sister.

6         Section 53 is amended by striking out "The Victims' Rights Act" and substituting "The Victims' Bill of Rights".

7         Sections 15 to 54 are renumbered as sections 38 to 77, with any additional changes in cross references required as a result of the renumbering.

REFERENCE TO NAME OF ACT, COMING INTO FORCE

Reference to name of Act

8         A reference in any Act, regulation or other document to "The Victims' Rights Act" is deemed to be a reference to "The Victims' Bill of Rights".

Coming into force

9         This Act comes into force on a day fixed by proclamation.