In murder cases and even ‘less serious’ cases of violence against a member of the community, it is common to see the family of the victim in the front row of the courtroom during the trial. Outside they will be photographed by the media and asked for comments.
Sometimes family members are invited to provide “Victim Impact Statements” which are read aloud in court and taken into account by the Judge imposing sentence. These family members are readily recognized as “victims”, even though they did not personally and directly endure the violence for which the accused was convicted.
None of the above is controversial. Not even the most obstreperous defence lawyer would try to argue that they are not in fact victims.
Yet the Court of Appeal for Ontario describes a family’s interest in ensuring that a perpetrator is duly convicted by saying that they “may have derived some personal satisfaction from that conviction. That satisfaction, however, would have been a purely personal matter; it would have no reality in law.”
The interest of the family members of a homicide victim in seeing the perpetrator convicted has “no reality in law.”? Run that past a politician and see if they will publically agree.
But, to be fair, make sure you tell them this too. When the Court made this statement, it was in fact quoting from another well established case. And it was not talking about cases where an accused has been charged and put on trial. It was talking about cases where the police had failed to charge someone and the victim’s family wanted to sue police for negligent investigation.
The Court was referring to cases, for example, where someone wanted to sue because police negligently investigated complaints that a spouse was assaulting her children; or where a cyclist’s family sued one police officer for negligently investigating another police officer for impaired driving causing death. In those cases the family’s interest in seeing the perpetrator duly convicted would have “no reality in law.”
Thus in the case of Wellington v. Ontario the mother and sister of a 15-year-old killed by police at the wheel of a stolen van in a parking in 2006 could not sue the SIU for failing to interview the officer who fired the fatal shot and closing its investigation before even receiving a pathologist’s report.
The suspect police officer, or any criminal suspect for that matter, would be able to sue the investigators – whether police or SIU – for any negligence in the investigation.
But the desire of the dead 15-year-old’s mother and sister to see a full investigation of the death has “no reality in law”. That’s just the way it is. It may be that the law thus protects police who protect other police by not properly investigating police criminality. Maybe not. Run it past a politician and see if they will publically agree.