The Raoul Wallenberg Centre GC and former DOJ counsel is advocating for changes to Canada’s Bill C-16
In December, the Government of Canada unveiled the Protecting Victims Act, which it billed as “one of the most consequential reforms of the Criminal Code in a generation.”
Also known as Bill C-16, the proposed legislation looks to enact measures to better protect victims and survivors of intimate partner, sexual, and gender-based violence, including children. The proposals include creating new offences or increasing penalties for a range of violent or exploitative conduct, and modernizing sexual violence protections to account for technology like deepfakes.
On Friday, the Raoul Wallenberg Centre for Human Rights, whose members include parliamentarians, scholars, jurists, NGOs, and students, submitted a series of proposed amendments to the House of Commons Standing Committee on Justice and Human Rights. According to the organization’s chief general counsel, Angela Marinos, the proposed amendments could strengthen how the criminal justice system handles human trafficking cases, protect complainants’ privacy interests, and support the restorative justice process.
Marinos, who previously spent more than two decades as counsel at the federal Department of Justice, talked to Canadian Lawyer on Tuesday about one of the organization’s proposals: introducing publicly-funded, independent legal counsel for victims and survivors of sexual violence – a concept that a federal ombudsperson also advocated for in a report published weeks before the introduction of Bill C-16. Noting that survivors of sexual violence typically have no standing in legal proceedings, the ombudsperson's report recommended that the federal government invest in independent legal representation and independent legal advice programs to guide victims through the criminal justice system.
This interview with Marinos has been edited and condensed for clarity.
Canadian Lawyer: The Raoul Wallenberg Centre for Human Rights is advocating for “a more robust system for independent legal counsel for victims of sexual violence.” What kind of legal assistance are victims of sexual violence currently entitled to?
Marinos: There’s three separate things. There’s the court system, and what happens before you get to the court system.
Say you’ve been sexually assaulted. There’s different clinics across the country that provide what's called independent legal advice for victims of sexual violence. Right now, if you were in Ontario, the Barbra Schlifer Commemorative Clinic, for example, is one. There’s different clinics across every province, except Manitoba and Nunavut, that provide this, where there’s a lawyer that meets with the victim and provides legal advice about their rights or the system.
But that is generally limited to four hours. In most places, you must be aged 16 or above. In some provinces, it might be 18 or above. And it’s just advice, it’s not representation in court.
In the court system, there is a right to counsel in two areas, under ss. 276 and 278 of the Criminal Code [which respectively deal with the use of a complainant’s past sexual activity and therapeutic records as evidence].
We’re saying, that’s great, but let’s improve what we already have.
The way the government has described Bill C-16 is that it’s one of the most consequential Criminal Code reforms in generations. We’re saying, creating independent legal representation for survivors now – that’s consequential.
CL: Your organization argued that providing publicly-funded, independent legal counsel for victims is important because “even though the Crown presents the complainant’s evidence, their interests are not always the same.” Can you elaborate on that?
Marinos: The Crown is not there to represent the complainant. They don’t have a solicitor-client relationship.
If the complainant says something to the Crown, the Crown has to disclose that to the accused, whereas if they have their own independent legal representation, whatever they tell their lawyer, there is a solicitor-client privileged relationship. The lawyer is there to represent only the interests of their clients, whereas the Crown is representing the public interest.
CL: What would a program providing publicly-funded, independent legal counsel for victims look like?
Marinos: I would expect that it would be just like having duty counsel available. Say a victim of sexual violence or sex trafficking goes to the police and they say, can you give a statement? Or they start interviewing the complainant. Before that happens, we would want the police to say, actually, you know, here’s a roster of counsel and you can call one and get representation.
These lawyers can prepare you for the preliminary inquiry. They can prepare you for trial. Crown attorneys are busy – they’re not there to hand hold the complainants necessarily.
We’ve seen various cases that have complainants breaking down on the stand. The Crown attorneys aren’t necessarily objecting to certain questions, or they’re not necessarily objecting to certain procedures. If complainants had the right to independent legal counsel, we say it would mitigate the hard process that any complainant goes through when they’re testifying about such personal, intimate events.
It’s hard enough to survive that kind of violence. It’s hard enough to navigate the legal system. It’s all hard, but having your own independent legal representation can go a long way.
CL: Under current law, if a complainant has the financial means to hire their own representation, can they do that?
Marinos: To the best of my knowledge, they can.
CL: Your organization has submitted its proposals to the Standing Committee on Justice and Human Rights. What’s next?
Marinos: I believe our brief has to be translated and then the committee will hopefully review it and then they select witnesses. We’re hoping that we will be selected to testify. We think that we have good proposals.
We agree with the government’s characterization of Bill C-16 being a step in the right direction, and have offered the government some more steps to further that.
