The Role of the Victim in the Criminal Process: A Literature Review - 1989 to 1999

3. Victims’ Rights in Canada

3. Victims’ Rights in Canada

3.1 Introduction

Both in Canada and abroad the first official legislative act designed to address the plight of victims was the creation of compensation boards. Although governmental compensation has an ancient pedigree stemming back to the Babylonian Code of Hammurabi (approximately 1775 B.C.), the gradual conversion of the law of wrongdoing into the law of crime erased all memory of the victim’s private interest and compensation was left to the individual initiative of victims in launching civil suits. New Zealand was the frontrunner by establishing the first legislative scheme in 1963 for state compensation to those injured by crime (in fact, this scheme was amended in 1972 to create the most comprehensive compensation scheme in the nature of no-fault insurance). In 1963 Britain established a royal commission to study the issue and by 1964 Britain established its first compensation scheme. California followed suit in 1965 and in 1969 Alberta established the first Canadian legislative scheme for victim compensation. By 1988 similar schemes had been enacted in all Canadian provinces.

Within the criminal process itself, the Criminal Code had contained for the past thirty years provisions allowing for compensation/restitution as part of the sentencing process; however, these provisions have been underutilized and limited in scope of operation. Due to the unique structure of Canadian federalism, the Federal government has limited jurisdiction respecting compensation and thus compensation within the process is limited to damage awards that are readily ascertainable and relate to quantifiable and concrete losses. Needless to say, the provincial schemes do not suffer from the same constitutional restrictions, and the provincial entry into the compensation field propelled provinces into the general field of the provision of welfare rights to crime victims.

Building on the welfare model of victims’ rights, other government social services were extended to victims. Beyond the compensation schemes of the 1970s, most provincial jurisdictions began to offer victim-witness programs, social service referral programs, crisis intervention programs, victim advocacy programs and victim-offender mediation programs. In 1988 the Federal government lent some assistance to the development of provincial programs by amending the Criminal Code to require the imposition of a small victim surcharge to be applied to provincial victim assistance schemes.

Spread throughout the country is a patchwork quilt of victim services. Clearly, these programs must be nurtured and expanded; however, as already discussed, this report will not exhaustively canvas the welfare model of victims’ rights (as reflected in various provincial programs) as the focus will be on the rights-based model of empowerment through participation in the process. Nonetheless, reference to the provincial provision of services is unavoidable for the simple reason that the vast majority of studies (almost all commissioned by the federal and provincial governments) concern the provision of welfare services. The issue of participatory rights forms a large part of the platform of political activism, but surprisingly, has received little academic attention. In terms of government studies, participatory rights have also received little attention except for an extensive evaluation of the utilization of victim impact statements in Canadian courts.

In general, there is a dearth of Canadian literature discussing the role of the victim in the criminal process. Although this report is designed to review literature produced between 1989–1999, on occasion it will be necessary to refer to pre1989 literature due to the absence of any contemporary work. There appears to be one catalyst for academic attention and this is the constitutional challenge to legislation that is designed, directly or indirectly, to protect the interests of victims. Constitutional challenges to the rape shield law or the production of counselling records produced an outpouring (by Canadian standards) of law review articles, and scholars were compelled to address victims’ rights issues. However, without the spectre of a constitutional challenge looming in the background, few Canadian academics have chosen to explore victims’ rights issues. By way of contrast, criminologists and victimologists in Canada have produced an impressive array of literature dealing with victimological concerns that are beyond the scope of this report.

As alluded to in the introduction to this report, the collection of the identified literature was fraught with obstacles as many articles and reports are simply unavailable. Certain Department of Justice Canada reports were difficult to locate possibly due to the fact that they had been archived or out of print. Difficulties were also experienced in locating documents from other government departments. Ironically, the following statement was found while reviewing the literature for this report:

In 1982 a National Victim Resource Centre was established in Ottawa. Phase one of the project, a basic collection of literature about victims and victimization, was completed in 1983. During phase two, records on new government funded victim research and demonstration projects were added, as well as more descriptions of written materials. In 1984 detailed information was added on victims services operating across Canada. The Federal government has approved operation of this data collection on an experimental purpose until March of 1986. (Barfknecht, 1985:84)

Although attempts were made to establish this data collection centre, no central repository for literature pertaining to victims’ rights currently exists. The Department of Justice Canada has commissioned literature reviews (Meredith, 1984) and inventory reviews of public legal education materials relating to crime prevention and victims (Gill, 1994); however, materials included in these bibliographical listings were often difficult to retrieve.

Although there does exist a considerable body of Canadian literature dealing with restorative justice and mediation within the criminal process, these topics will not be discussed in this part of the report. Numerous mediation programs have been initiated in Canada and to a certain extent mediation programs are an important component of the restorative aspects of the victims’ rights movement. However, this part of the report will not discuss Canadian developments with respect to restorative justice as the general topic of mediation is discussed in Chapter 5.0 of this report dealing with social science perspectives.

3.2 Discussion

3.2.1 Federal Initiatives

In October 1998, the House of Commons Standing Committee on Justice and Human Rights released a report, Victims’ Rights — A Voice, not a Veto, in which the Committee reflected on progress to date and the need for further reform. They begin the analysis with the conventional assumptions that most politicians make, regardless of whether or not the assumptions are supported by a solid, empirical foundation. Despite the absence of a solid empirical foundation, these assumptions are constantly echoed by victims who are asked to provide testimony before government standing committees. The testimony inexorably leads to the following conclusion drawn by the Standing Committee on Justice and Human Rights:

To summarize, victims ask for a voice, not a veto over, what happens at each stage of the criminal justice process. They ask for information and notification — about how the criminal justice system functions, about the programs and services available to them, and about the various stages of the case in which they are involved. They argue that they are entitled to be treated with dignity. They urge the provision of adequate financial, human, and other resources to programs intended for victims of crime. They identify as a critical problem the uneven availability of victims’ programs and services both between provinces and territories, and within them. In their view, addressing all of these issues will restore the imbalance they see in the criminal justice system. (Standing Committee, 1998:2)

The report contains 17 recommendations to strengthen existing provisions that serve to protect victims’ interests. However the Committee did not recommend any reform which could be characterized as novel or innovative. It may be that conventional wisdom suggests that the Federal government lacks extensive constitutional authority to establish dramatic reform (Pilon, 1995a), and the Committee did note that we must recognize the "primary role of the provinces and territories in relation to victims in the criminal process" (Standing Committee, 1998:12). The constitutional shortcomings may be somewhat overstated considering that the provisions for restitution [R. v. Zelensky (1978) 41 C.C.C. (2d) 97 (S.C.C)] and the provisions for the victim surcharge have been upheld as a valid exercise of Federal criminal law power [R. v. Crowell (1992) 76 C.C.C. (3d) 413 (N.S.C.A)]. Nonetheless, the Committee called for a "coordinated strategy between all levels of government" (Standing Committee, 1998:6) with recognition of the provinces’ leading role, and this may account for the rather modest nature of the reforms initiated in 1998.

The following discussion will focus on the state of Federal victims’ rights reform as it applies in four areas: 1) Restitution; 2) Victim Surcharge; 3) Victim Impact Statements and Sentencing Reform; 4) Victims of Violence.

3.2.1.1 Restitution (Sections 738–741.2 & 491.2 of the Criminal Code)

Restitution as a sentencing option has been available for decades, yet somehow this restorative sanction has remained obscure, both in terms of practical implementation and academic commentary. Restitution within the Canadian criminal process is limited by constitutional principle to readily ascertainable damages. In 1967 it was noted that "these sections are rarely used by our courts, except as a condition of the imposition of a suspended sentence" and that the reluctance to employ this sanction continued due to two related factors: difficulties in assessing loss and concern that the assessment is properly in the realm of the civil courts (Burns 1992:12–13). In his book Criminal Injuries Compensation (1992), Professor Burns devotes only 20 pages to this topic and he confirms that the available evidence suggests that restitution within the criminal process is largely ineffective.

Recognizing the shortcomings within the law, the Federal government has twice amended the Criminal Code to strengthen the regime. In 1988 the law was amended to allow the prosecutor to apply for restitution and relieve the victim of this burden. In 1995 the law was amended and the categories of potential recovery were expanded, especially with respect to assisting victims of domestic violence. Notwithstanding these developments, the assessment of restitution remains unchanged — "complex and underused and available only in cases of ascertainable damages" (Roach, 1999:298). In 1998, the Standing Committee on Justice and Human Rights reviewed the current regime and made only one recommendation in this regard — "to assist the Provinces. . . in the development of strategies and resources to enable local agencies to help victims in the enforcement of restitution orders" (Standing Committee, 1998:34).

The available literature is consistent in tone and opinion (Muir, 1984; Ontario Legislative Assembly, 1994; Weitekamp, 1991). In 1986 the following observation was made:

Whether or not restitution is a "natural response", there appears to be a number of reasons why judges are reluctant to use the existing provisions and legislators are reluctant to impose more effective ones — reasons involving the nature of the criminal process, the objectives of sentencing, constitutional division of powers, and sometimes no doubt a combination of ignorance and inertia. Judge Cartwright… in R. v. Kalloo… commented:

"those few Crown counsel who are even aware of the existence of this section which allows the victim of an indictable offence to apply for an order to satisfy loss or damage to property caused in the commission of a crime are equally indifferent to its application".

He went on to suggest that if the Attorney General were paid by commission on completed restitution orders, "blood would be flowing from stones" all over Ontario. (Clarke, 1986:36)

In the scant literature from the 1990s commentators remain "skeptical" notwithstanding the reforms enacted in 1995 (Gaudreault, 1997; Renaud, 1996; Weitekamp, 1991). It is somewhat surprising that so little attention has been paid to restitution in light of the fact that the absence of restitution remains a contributor to victim dissatisfaction (Bonta et al., 1983; see Chapter 5.0 of this report). For example, the early literature clearly identified the return of property as a basic need of a crime victim. In the 1980s the restoration provisions of the Criminal Code were amended to include a provision (s. 491.2) allowing the police to promptly return stolen property, or a victim’s property seized as evidence, by modifying the traditional rules of evidence and deeming a photograph of the property to be admissible evidence. Although the amendment appears responsive to victims’ needs, there is not one reported or unreported case on this provision, nor is there any discussion of the provision in the academic literature.

3.2.1.2 Victim Surcharge (Section 737 of the Criminal Code)

Section 737 of the Criminal Code came into force in July 1989. The creation of the victim surcharge was designed to collect revenue for provincial victim assistance programs. The surcharge could not exceed 15% of any fine imposed, or $35.00 if no fine was imposed, and the Criminal Code dictates that the proceeds "shall be applied for the purposes of providing such assistance to victims of offences as the Lieutenant Governor in Council of the Province in which the surcharge is imposed may direct from time to time".

The only reference to this development in the academic literature is a brief comment introducing the concept of a victim surcharge (Libman, 1990), and a footnote in an article in which the program is criticized because of the failure of the province of Ontario to earmark the proceeds for victim services (Young, 1993). The difficult implementation of this reform is described in this summary of the experience in Ontario:

Currently, Ontario is the only province which does not have a designated fund into which revenues from the surcharge can be paid; rather, revenues from the surcharge are paid in the Consolidated Revenue Fund. The lack of a specific fund has resulted in some judges refusing to impose the victim fine surcharge. Judges have been doing this either by invoking the provision in the Code which allows them to waive the surcharge if its imposition would cause financial hardship to the offender or the offender’s dependents, or by reducing the fines imposed at sentencing on which the surcharge is calculated so that the total revenue collected is the same as it would have been before the surcharge came into effect. (Ontario Legislative Assembly, 1994:15)

The Province of Ontario remedied this omission and s. 737 withstood constitutional challenge in 1992 [R. v. Crowell (1992) 76 C.C.C. (3d) 413 (N.S.C.A.)] but problems remained. In 1998, the Nova Scotia Department of Justice noted that the expected revenue collected was less than anticipated (Standing Committee, 1998). This latter criticism is rather surprising in light of a study which concluded that "Nova Scotia is one of the provinces in which the surcharge has been fairly trouble-free" (Axon & Hann, 1994:84).

A 1992 study of the victim surcharge in British Columbia showed that the surcharge was applied in only 10% of eligible cases (Roberts, 1992). The lack of compliance appeared to be due to philosophical objection and resistance from the judiciary and, as in Ontario, the failure to establish a designated victims’ fund into which to apply the proceeds. The author also noted the dearth of readily available data in most jurisdictions, and despite general compliance in the Maritimes there is resistance and disparity in other provinces. In particular, there is very low compliance with the surcharge provisions when judges impose non-fine dispositions, and in 1990, the collected surcharge revenues were only 40% of the projected revenues.

A 1994 study commissioned by the Department of Justice Canada echoes the 1992 findings (Axon & Hann, 1994). Collected revenues across Canada were lower than expected with only 15% of the potential actually imposed and only 2.7% actually collected. The lowest compliance rate was found with respect to non-fine dispositions with some judges simply forgetting and some thinking it is unreasonable to impose surcharges when imposing custodial sentences. Institutional resistance was confirmed with some judges and prosecutors reporting that they felt the surcharge was an inappropriate way to generate revenues for victims. At the time of this study many provinces had still not created designated funds for victim services and this may account for the low rate of compliance reported in the early part of the 1990s.

The surcharge has not been the subject of any detailed discussion since the publication of the 1992 and 1994 reports. However, Parliament did amend s. 737 in 1999 to strengthen the surcharge. The surcharge was raised to $50.00 (summary conviction offences) or $100.00 (indictable offences) for non-fine dispositions, judges were given the power to raise the maximum surcharge where "appropriate in the circumstances", and the surcharge was now to be imposed automatically in all cases.