Crime victims hope Ottawa s new bill of rights offers louder voice

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1 Crime victims hope Ottawa s new bill of rights offers louder voice SEAN FINE - JUSTICE WRITER The Globe and Mail Published Tuesday, Apr , 6:00 AM EDT Last updated Tuesday, Apr , 11:13 AM EDT Her 20-year-old son was dead stabbed over and over with a pocket knife. Now, the prosecutor wished to see her about a deal with the 18- year-old accused killer. Instead of being put on trial for second-degree murder, he would plead guilty to manslaughter and receive a 10-year sentence. Five years later, she says she still has not recovered from the killing or how the justice system treated her. The role of victims and their loved ones in plea bargains, and throughout the justice process, is likely to be in for an overhaul this week, when Justice Minister Peter MacKay introduces a Victims Bill of Rights. Mr. MacKay says it will put victims at the heart of the justice system. It will ensure them a more effective voice at every step, he said, including plea bargains. Whether the bill would create new rights and ways to enforce them, or simply add a new set of vague principles, is still unclear. But from a government that created the Ombudsman for Victims of Crime, that is making even the most impoverished offenders pay a surcharge for victims services, and that regularly passes tough-oncrime laws in the name of victims, Mr. MacKay s promises have raised expectations among victims. Plea bargains are a contentious area for victims. S., the mother of the slain 20-year-old (her full name isn t being used so she may speak frankly), said she told the prosecutor, James Vincelli, she could not abide the plea bargain. I want you to let him go then, she said. He s a murderer. Let the murderer go. Don t charge him with manslaughter because his whole life is going to be, Oh, you poor guy, you were put in a position where you had to take a man s life. I would rather him be out walking the street than put in jail for manslaughter.

2 But the plea bargain went through and the judge was never told S. was opposed, a court transcript shows. Mr. Vincelli declined to be interviewed. Mr. MacKay s promises to victims have fuelled concerns, not only from an expected place criminal defence lawyers but from a psychologist who treats crime victims and their families and who worked with S. They re misleading victims, said Lori Triano-Antidormi of Hamilton, Ont. They re creating false hope and expectations. Dr. Triano-Antidormi is not just any psychotherapist. Her son Zachary was killed at 2½ by a deranged neighbour with a kitchen knife under a cape stabbed 12 times. (Lucia Piovesan was found not criminally responsible because of her paranoid schizophrenia, and is still in custody 17 years later.) I was struck by the intensity of the grief, Dr. Triano-Antidormi said. As a victim in the justice system, she found herself angry at seemingly mundane matters the prosecutor calling the defence lawyer my friend. Mostly, she felt ignored, except when a forensic psychiatrist sat down with her and her husband to explain the meaning of not criminally responsible by reason of mental illness. Still, she said a wonderful counsellor provided by the local police department s victims services unit taught her to focus on herself and her healing rather than the trial. And she recovered. The conclusion she drew is that the more victims participate in the adversarial justice process, the more their recovery is at risk. The therapy she has done with crime victims reaffirmed her belief. We can t change that everyone is entitled to a fair trial, she said. Victims don t want to hear that. So why put them in that system? Why make it more of a fight? That just feeds their anger, and in the end, the anger doesn t hurt anybody but them and their families. S. has not recovered. She used to hold two jobs; since her son was killed, she has not worked. My son was the victim, I m the aftermath. There s so many things that the system does wrong that keep us very angry and in pain. Off-the-charts pain. She offers several examples: an official telephoned her about the killer s first 72-hour pass on her late son s birthday; she is denied a

3 rebuttal at parole hearings; she was ordered to leave the courtroom when she and her friends and family showed up wearing T-shirts with a picture of her son s face on them. We re all here because of this face and they don t want to see it. When you re told, no something, you look at the yes the killer got. The education [her son s killer earned his high-school diploma in jail while awaiting trial]. Being placed in a facility that has a tennis court. A court transcript shows Mr. Vincelli told the court that S. s son had slapped the killer twice as he tried to make him repay the small debt he was owed. Her son was also a bigger man. The accused could have claimed self defence, provocation or drunkenness, any one of which could have undermined the case for murder, Mr. Vincelli said. He made no reference to S. s views in relation to the plea bargain, the transcript shows. And Justice Stephen Glithero of the Ontario Superior Court did not ask about her views when he accepted the plea bargain. Judges in plea bargains know only the facts presented to them. S. said her son was stabbed 17 times. The court transcript does not give a number. Mr. Vincelli told the court he was stabbed multiple times. S. wants victims to have something like a veto over plea bargains, as long as the evidence supports the initial charge. If I m prepared to take those chances and say, I want him tried for the crime he committed, why can t that be? But Mr. MacKay, a former prosecutor himself, said in an interview that while he supports consultation, a veto for victims is impossible; discretion must remain with prosecutors. Having been in the very uncomfortable position of telling victims that charges were going to be dropped or reduced, it s a tough call. It s one of the most onerous decisions that you make, Mr. MacKay said. And there are many, many factors. And victims, for reasons of proximity and emotion, are often not able to make those decisions objectively, like the Crown, who s acting on behalf of the entire state. There may be a middle ground, short of a veto. The U.S. Crime Victims Rights Act gives victims the right to address every public proceeding including bail, plea, sentencing and parole. It even gives victims standing in court, allowing them to hire lawyers to represent them, according to a paper by Marie Manikis, a law professor at McGill University.

4 Victims express greater satisfaction with the system when they feel they have been heard, said Paul Cassell, who teaches law at the University of Utah. In the United States, victims can offer a recommendation on sentencing; victims in Canada cannot. Although the recommendations do not tend to affect sentences, victims walk out of the courthouse more satisfied with the outcome than if they weren t heard at all, Prof. Cassell said. I think that s probably the primary benefit of a more victim-friendly system. It gives victims more ownership of the system. They become less alienated and maybe more likely to co-operate with the criminaljustice apparatus. Manitoba Court Judge Ray Wyant says victims should be allowed to recommend a sentence in Canada. What s the harm in that? he said in an interview. I think it s important for the judge to hear. I ve always taken the view that the more information I have as a judge, the better and more appropriate my sentence or decision is going to be. He said he has noticed the effect on victims when they feel they have been heard. In 2011, he accepted a plea bargain to a manslaughter charge in the case of a 29-year-old man stomped to death by a group of teenagers at an outdoor festival in Gimli. Most witnesses were drunk, there were multiple versions of what happened. In the end, two youths each received only a three-year supervision order probation, not jail. They had too much to drink and something terrible happened, Judge Wyant said. The Crown agreed to this disposition in large part because they didn t think they could prove their case. The exigencies called for a plea bargain. The victim s fiancée was still shattered by the killing when she came to court with her mother and father for the sentencing. But the case proceeded very differently than the one described by S. The Crown said very honestly, The victim is not happy; she would wish you not to go along with it, Judge Wyant said.

5 The father had to read the victim-impact statement. I m not afraid to admit I had tears on more than one occasion. I spent a lot of time talking to these two kids [the offenders]. I spent a lot of time talking to her. He accepted the plea bargain, and explained his reasons at length. When court was over, I walked over to her I was in my robes and we shared a tear together. About two months later, I got a letter, one of the rare prize possessions you get in this job. It said that even though she still didn t want that sentence, still didn t agree with it, she said the whole thing was incredible, that what had happened in court had changed her life around. She had gone back to school and was now helping other victims, and wanted to thank me. This summer, the killer of S. s son will be released from prison just four years after sentencing. S. says she knows she needs to move on from her anger over the plea bargain. Her difficulties, in the end, are not only with the justice process; she feels let down by victim services. After 34 counselling sessions over five years, her support from the Ontario Criminal Injuries Compensation Board was cut off. And no one from victim services called to tell her of services that might help her, she said, or just to ask how she was doing. Is there anything available in my area to somebody like me? Because I m sitting in a 500-square-foot apartment wanting to die.