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

3. Victims’ Rights in Canada (cont'd)

3. Victims’ Rights in Canada (cont'd)

3.2 Discussion (cont'd)

3.2.1 Federal Initiatives (cont'd)

3.2.1.3 Victim Impact Statements and Sentencing Reform (Section 722 of the Criminal Code)

In 1988, there were three significant reforms: the introduction of victim impact statements, the prioritization of restitution over the fine, and the creation of the victim surcharge. Some reforms appear doomed to failure due to limited resources or a lack of political and legal will. In contrast, the introduction of the victim impact statement does not impose an enormous fiscal burden upon the government and as such should not be doomed to failure, yet studies suggest that the victim impact statement has not had a dramatic impact on the sentencing landscape.

Since 1988, there have been several reforms that provide a stronger foundation for the introduction of victim impact statements. In 1995, Parliament enacted within the Criminal Code a statement of the fundamental purposes of sentencing, and for the first time there is explicit recognition that sentencing also serves the interests of victims. Section 718 includes as two of the six stated objectives of sentencing that punishment is "to provide reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community". In addition, in 1999, s. 722 of the Code was amended to permit the victim to deliver the statement orally in open court, if so desired, and by requiring the judge to inquire whether or not the victim has been advised of his/her right to make this statement. Finally, the Corrections and Conditional Release Act, S.C. 1992, c. 20, was amended to permit introduction of these statements at parole hearings, and the Young Offenders Act, R. S. C. 1985, Y. 1, was amended in 1995 to allow the introduction of these statements in Youth Court (s. 14(2)(b)). Finally, in 1995 the Criminal Code was amended to allow these statements at "faint hope" hearings. According to s. 745.6, prisoners serving life terms with parole ineligibility in excess of 15 years may apply for a jury review of their parole eligibility date. Victim participation at these hearings was extended in 1999 to include a right to make an oral statement.

In exploring the utility of victim impact statements, the Solicitor General Canada commissioned a study in 1985 to determine how these statements would impact upon sentencing judges. It was determined that the impact was modest, but that the statements did have a tendency to raise the tariff for crimes of violence but not for property crimes (Solicitor General Canada, 1985). In 1988, a two-year study of a pilot project involving victim impact statements in Winnipeg was published. The findings revealed little of great significance, save for the opposition demonstrated by law enforcement and judicial officials to the introduction of these statements (Clarke, 1988). In the Introduction to this report, reference was made to professional opposition to victim law reform and it is not surprising that two of the three academic articles on victim impact in Canada were written by defence lawyers who were concerned about the potential for these statements to inflame the court (Rubel, 1986; Skurka, 1993). The concerns expressed by defence lawyers have been addressed in an article which concludes that victim impact statements would not lead to more punitive sentencing (Young, 1993). This conclusion was based upon the existing empirical evidence in the US and a Department of Justice Canada study in 1990 which concluded that "victims do not seem to use these statements as a retributive tool and there is no evidence to suggest that statements are vengeful in nature" (Focus Consultants et al., 7, 1990:29).

The Department of Justice Canada conducted five pilot projects in Victoria, North Battleford, Winnipeg, Calgary and Toronto prior to the enactment of the legislation in 1988. The findings revealed great disparity with respect to the use of victim impact statements, with a low of 14% of cases in Calgary and a high of 83% in Toronto. As mentioned above, victims did not see the filing of the statement as a retributive tool; however, contrary to expectations, use of the statement in court did not lead to a greater level of satisfaction with the process. It appeared from the study that the process of completing the statement (and perhaps being able to discuss the matter with probation officers or other officials) is what leads to greater satisfaction with the process, and that the ultimate use of the statement is not a primary consideration for victim satisfaction. Victims who participated in the program expressed higher levels of satisfaction with the administration of justice than those who did not participate; however, all victims still expressed concerns over the provision of information concerning the progress of their cases (Focus Consultants et al., 1990).

The results of these Canadian victim impact statement pilot projects were summarized in a European collection of articles dealing with victims’ rights and the author concluded that the studies teach us two lessons. First, they dispel the myth that victims are seeking vengeance at sentencing and second:

…the research has dispelled any illusions about the overall utility of the VIS to the criminal justice system. Completing a statement does not necessarily lead to greater victim satisfaction with the system, nor does it increase the victims’ willingness to cooperate with the systems in the future. Completing a statement does not, by itself, make the victims feel better about how the system is handling their case. They want to be informed about the progress of their case and they want information on how the criminal justice system operates. (Giliberti, 1991:717)

In 1992, the Department of Justice Canada commissioned another study involving an assessment of victim impact statements in British Columbia. The author found that statements were only completed in 2–6% of cases and then only filed in 1–2% of cases proceeding through the system. Judges expressed limited experience with the victim impact statement but the judiciary also found the admission of the statement not to be problematic and felt that its admission increased their awareness of victims’ needs and concerns. As would be expected, defence counsel expressed concern over the negative impact these statements have for their clients, especially offenders charged with sexual assault or murder (Roberts, 1992).

The 1999 amendments requiring sentencing judges to make inquiries as to whether the victim has been advised of the right to tender a victim impact statement may lead to an increase in utilization and impact. To date, however, "victim impact statements have not emerged as a major criminal justice issue in Canada", and "low rates of victim participation might in part be explained by an understandable reluctance of crime victims to expose their suffering to adversarial challenge" (Roach, 1999b:291). The most recent discussion of these statements expresses support for the objectives underlying the program but recommends further research:

More research needs to be done, but victim-impact statements appear to be a symbolic and punitive reform. Even in the infrequent cases in which they are introduced, the traditional reluctance of judges to base the sentencing on victims’ suffering may not have changed. Crime victims were directed to put their hopes in punishment, only to be frequently disappointed. Nevertheless, allowing victims to explain the impact of the crime was an important form of procedural justice that could promote closure for the victim and accountability for the offender. (Roach, 1999b:292)

3.2.1.4 Victims of Violence

During the 1970s, 80s and 90s there has been a gradual and systematic effort to make the judicial process more responsive to victims of violence. With respect to violence against children and women there have been significant changes made to the substantive definitions of sexual offences and the archaic procedural and evidentiary obstacles to conviction. In addition, court process has been significantly modified to reduce the secondary victimization experienced by victims who appear as witnesses at trial. The achievements have been significant and the law reform effected with respect to victims of violence is consistent with developments in most Western liberal democracies.

With respect to sexual violence against women and children, the following list represents the major procedural and evidentiary changes enacted within the Criminal Code to facilitate effective prosecution for these offences:

s. 276 "rape shield" law to screen evidence of past sexual conduct
s. 276.2 exclusion of jury and public upon hearing s. 276 application
s. 276.3 publication ban with respect to s. 276 hearing
s. 278.1 "O’Connor" applications and the provisions to protect the privacy of private and confidential records of third parties (e.g., victims)
s. 486(1) exclusion of public; although not designed solely for sexual offence prosecution, the terms of the power are ideally suited for these cases especially offences against children (s. 486(1.1))
s.486(1.2) with respect to complainants under the age of 18, they may testify accompanied by support person
s. 486(2.1) with respect to complainants under the age of 18, they may testify behind a screen or by closed-circuit television
s. 486(2.3) in most cases an unrepresented accused is not permitted to cross examine child witness
s. 486(3) publication ban on the name and identity of complainant in sexual offences
s. 486(4.1) publication ban re: identity of victim/witness for any offence
s. 715.1 with respect to complainants under the age of 18, a pre-trial videotape of their testimony may be introduced at trial
s. 715.2 with respect to complainants suffering from mental or physical disability, a pre-trial videotape of their testimony many be introduced

In addition to these procedural reforms, Parliament has enacted legislation criminalizing stalking (criminal harassment, s. 264) and legislation allowing for the imposition of restraining orders against potential child sex offenders(s. 161 and s. 810.1). Most recently, Parliament has passed legislation requiring that judges and police consider victims’ safety in making any determination as to judicial interim release (s. 515(10)(b)).

It is in the area of protection for victims of violence that we find a considerable, by Canadian standards, body of academic literature. The process of generating academic interest follows a consistent pattern; legislation is passed with little or no academic response, but as soon as the legislation is subject to constitutional attack the commentators become intrigued. In R. v. Seaboyer (1991) 66 C.C.C. (3d) 321 (S.C.C.), the rape shield law was declared unconstitutional and this spawned a series of articles, both critical and praiseworthy (Cogswell, 1992; Acorn, 1991; Allman, 1992; Boyle & MacCrimmon, 1991; Schwartz, 1994; Delisle, 1992; Shaffer, 1992).

In R. v. O’Connor (1995) 44 C.R. (4th) 1 (S.C.C.), the Supreme Court of Canada placed restrictions on access to confidential records of complainants, and this too spawned an outpouring of comments (Alderson, 1996; Holmes, 1996; Busby, 1997; Van Dieen, 1997; Holmes, 1997; Epp, 1996–7; Feldthusen, 1996; Neufeld, 1995; Peters, 1996; Young, 1996; Mitchell, 1996; MacCrimmon, 1996; Bennett, 1996; Struesser, 1996). The literature discussing the "O’Connor" application reflects an expression of ideology with victims’ rights advocates expressing concern over the relevancy of any private record, due process advocates expressing concern over impairment of full answer and defence and most others simply applauding the Court for delicately balancing competing interests with respect to this difficult issue.

Ultimately, Parliament modified the judicially-created "O’Connor" procedure by making access to private records more difficult (s. 278.1), and recently, the Supreme Court of Canada in R. v. Mills (1999) 139 C.C.C. (3d) 321, upheld these restrictions on access as being constitutionally sound. Academic commentators are intrigued by the dialogue between courts and legislatures with respect to the constitutional limits which should be imposed upon law reform efforts for victims of violence; however, it does not appear that academic commentary sparks the dialogue. The academic literature did not trigger the recent "O’Connor amendments", and the legislative reversal of the Daviault decision dealing with the defence of extreme intoxication was not precipitated by academic commentary and principled debate. In Daviault (1994) 33 C.R. (4th) 165 (S.C.C.), the Supreme Court of Canada created a defence of ‘extreme intoxication’ which could apply in rare cases to cases of sexual assault (previously, intoxication was never considered a defence to sexual assault). Despite the fact that this constitutional decision did not attract an outpouring of academic commentary, Parliament quickly responded and enacted s. 33.1 to prevent intoxication from being considered a defence to sexual assault and other crimes of violence.

As mentioned in the Introduction to this report, there is a large body of criminological writings on women and children as victims of violence; however, a review of this literature is beyond the scope of this report. Nonetheless, there is one area relating to victims of violence which has attracted some academic attention and is indirectly within the scope of this report as it engages issues concerning interaction with legal process. There has been a considerable amount of writing devoted to the issue of compensating battered women and women victimized by violence (Langer, 1991; Weigers, 1994; Van Ginkel, 1990; Des Rosiers, 1992; Feldthusen, 1993; Mosher, 1994; Sheehy, 1994). In general, these articles are critical of stereotypical thinking which has presented obstacles to recovery through civil suit or application to a criminal injuries tribunal, and they are uniformly supportive of judicial developments which have facilitated civil suits for sexual violence (e.g., the judicial relaxation of limitation periods for incest victims). In fact, this is one of the only areas of law relating to victims’ rights which has generated a legal textbook outlining the process for initiating civil actions for childhood sexual abuse (Neeb & Harper, 1993). It is interesting to note that, as discussed earlier, there is very little literature dealing with restitution within the criminal process yet the goal of compensating victims of sexual violence attracts a great deal of academic attention. This may be a reflection of a lack of confidence in the criminal justice system to respond to victims’ financial needs and a preference for civil actions and administrative remedy.

3.2.2 Provincial Initiatives

The provision of welfare rights is the primary activity engaged in by provincial governments. As the focus of this report is the victim’s role in the criminal process, the discussion of victim assistance with respect to social, psychological and financial assistance will be brief. The provincial initiatives intersect with the federal ones in three ways:

  1. the enactment of Victims’ Bills of Rights in every province which appear to guarantee certain entitlements with respect to participation and involvement in the administration of criminal justice;
  2. the provision of victim-witness assistance programs to help victims understand the operation of the criminal justice system; and
  3. the creation of administrative tribunals in most provinces to provide compensation for injury caused by crime.

In contrast to the limited discussion of Criminal Code restitution in the literature, there is a significant body of literature discussing and analysing provincial compensation schemes. This focus in the literature may reflect both the importance to

the victim for reasonable compensation and the skepticism of achieving satisfaction under federal law. Provincial legislation governing compensation and enacting statutory rights are as follows:

Provincial and Territorial Legislation
  • Alberta:
    • Victims of Crime Act, S.A. 1996, Chapter V-3.3
  • British Columbia:
    • Victims of Crime Act, S.B.C. 1995, c. 47
    • Criminal Injuries Compensation Act, R.S.B.C. 1979 c. 83; amended by S.B.C. 1995, c. 36
  • Manitoba
    • The Victims’ Rights and Consequential Amendments Act, S.M. 1998, c. 44
  • New Brunswick
    • Victims’ Services Act 1987, S.N.B. 1987 CV-21 as amended by S.N.B. 1996, c. 36
  • Newfoundland
    • Victims of Crime Services Act, R.S.N. 1990 c. V-5
  • Northwest Territories
    • Victims of Crime Act, R.S.N.W.T. 1988 c. 9
  • Nova Scotia
    • Victims’ Rights and Services Act, S.N.S. 1989 c. 14
  • Ontario
    • Victims’ Bill of Rights, S.O. 1995 c. 6
    • Compensation for Victims of Crime Act, S.O. 1990 c. 24
    • Victims’ Rights to Proceeds of Crime Act, S.O. 1994 c. 39
  • Prince Edward Island
    • Victims’ of Crime Act, R.S.P.E.I. 1988 c. V-3.1
    • Victims of Family Violence Act, S.P.E.I. 1996 c. 47
  • Quebec
    • Crime Victims Compensation Act, 1994 S.Q. c. 16
  • Saskatchewan
    • Victims of Crime Act, S.S. 1995 c. 4-6. 011
    • Victims of Domestic Violence Act, S.S. 1994 c. V-6. 02
  • Yukon
    • Victim Services Act, S.Y. 1992 c. 15; repealed by S.Y. 1997 c. 11 and replaced with Crime Prevention and Victim Services Trust Act, S.Y. 1997 c. 11

Some of the provinces publish annual reports detailing the operation of their compensation schemes and other victim services. The reports are not analytical in nature and usually provide raw data in terms of applications reviewed or granted and monies spent on various projects. The annual reports available in government document libraries in Toronto were: 1) Newfoundland, Annual Report of the Newfoundland Crimes Compensation Board; 2) Nova Scotia, Victim Service Activity Report; 3) Prince Edward Island, Annual Report: Victims of Crime Act; 4) Alberta, Victims of Crime Fund — Annual Report; 5) New Brunswick; Annual Report: Compensation for Victims of Crime Act. In addition, most justice departments in most provinces maintain a website providing information about provincial services. A Directory of Services for Victims of Crime can be obtained for purchase from the Canadian Criminal Justice Association (ccja@star.ca).