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)

3.2.2 Provincial Initiatives (cont'd)

3.2.2.1 Victims’ Bills of Rights

Victims’ Bills of Rights build upon and borrow from the basic principles outlined in the 1985 U.N. Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power (see Chapter 4.0 of this report). With some minor variations, virtually every Bill of Rights in Canada, the US or Europe contains identical guarantees with respect to notification and modest consultation in the criminal process. Although there are some variations on the theme, for the most part all Bills of Rights, whether statutory or constitutional, address some, or all, of these rights:

  1. To be informed of the final disposition of the case;
  2. To be notified if any court proceeding for which they have received a subpoena will not occur as scheduled;
  3. To receive protection from victim intimidation and to be provided with information as to the level of protection available;
  4. To be informed of the procedure for receiving witness fees;
  5. To be provided, whenever practical, with a secure waiting area not close to where the defendants wait;
  6. To have personal property in the possession of law enforcement agencies returned as expeditiously as possible, where feasible, photographing the property and returning it to the owner within ten days of being taken;
  7. To be provided with appropriate employer intercessions that loss of pay and other benefits resulting from court appearances will be minimized.

Although Professor Waller wrote, "in 1986, Manitoba made world history by being the first jurisdiction to place principles [from the U.N. Declaration] into its own law" (Waller, 1990:463), it appears that while Manitoba was clearly the first Canadian jurisdiction to pass a victims’ Bill of Rights, it may have just been following the lead of many American jurisdictions which had proposed or enacted similar legislation.

Building on the theme of empowering the victim by providing rights of participation and notification, the various provincial schemes have minor differences but are more or less similar in nature (though not quite as comprehensive) to the following provision as taken from section 2 of the Ontario legislation. This provision provides a fairly representative listing of the various rights which have been secured by victims in North America:

  1. The following principles apply to the treatment of victims of crime:
    1. Victims should be treated with courtesy, compassion and respect for their personal dignity and privacy by justice system officials.
    2. Victims should have access to information about,
      1. the services and remedies available to victims of crime,
      2. the provisions of this Act and of the Compensation for Victims of Crime Act that might assist them,
      3. the protection available to victims to prevent unlawful intimidation,
      4. the progress of investigations that relate to the crime,
      5. the charges laid with respect to the crime, and if no charges are laid, the reasons why no charges are laid,
      6. the victim’s role in the prosecution,
      7. court procedures that relate to the prosecution,
      8. the dates and places of all significant proceedings that relate to the prosecution,
      9. the outcome of all significant proceedings, including any proceedings on appeal,
      10. any pre-trial arrangements that are made that relate to a plea that may be entered by the accused at trial,
      11. the interim release and, in the event of conviction, the sentencing of an accused,
      12. any disposition made under section 672.54 or 672.58 of the Criminal Code (Canada) to make representations to the court by way of a victim impact statement.
    3. A victim of a prescribed crime should, if he or she so requests, be notified of,
      1. any application for release or any impending release of the convicted person, including release in accordance with a program of temporary absence, on parole or on an unescorted temporary absence pass, and
      2. any escape of the convicted person from custody.
    4. If the person accused of a prescribed crime is found unfit to stand trial or is found not criminally responsible on account of mental disorder, the victim should, if he or she so requests, by notified of,
      1. any hearing held with respect to the accused by the Review Board established or designated for Ontario pursuant to subsection 672.38 (1) of the Criminal Code (Canada),
      2. any order of the review Board directing the absolute or conditional discharge of the accused, and
      3. any escape of the accused from custody.
    5. Victims of sexual assault should, if the victim so requests, be interviewed during the investigation of the crime only by police officers and officials of the same gender as the victim.
    6. A victim’s property that is in the custody of justice system officials should be returned promptly to the victim, where the property is no longer needed for the purposes of the justice system.
  2. The principles set out in subsection (1) are subject to the availability of resources and information, what is reasonable in the circumstances of the case, what is consistent with the law and the public interest and what is necessary to ensure that the resolution of criminal proceedings is not delayed.

With the exception of one brief reference to the enactment of these Bills of Rights (Roach, 1999), there has been no academic commentary on their operation. The American Bills of Rights have been the subject of endless commentary, but primarily as a necessary component of the debate as to whether these rights warrant being entrenched in the Constitution. Even without the benefit of academic analysis, it is apparent that these schemes, though noble in spirit, do not permit meaningful participation for the following reasons:

  1. There exists no remedy for lack of compliance with the notification requirements. Therefore, prosecutors or police (it is not clear which institution will be responsible) can violate the law with impunity. Virtually every scheme contains a provision similar to s. 2(5) of the Ontario legislation which states: "No new cause of action, right of appeal, claim or other remedy exists in law because of this section or anything done or omitted to be done under this section". The B.C. legislation does provide some relief by having violations come within the mandate of the Ombudsman, and recently, Manitoba amended its legislation to allow for a grievance procedure with complaints being directed to the Director of Victim Support Services for investigation.
  2. Even if notification is complied with, there is no incentive for the victim to get involved in the process because the legislation does not allow the victim to override an exercise of prosecutorial discretion. The British Columbia legislation appears to provide some form of review or remedy for violation of enumerated rights by stating that the Ombudsman Act applies. However, the Ombudsman is not entitled to investigate any prosecutorial decisions relating to the approval of a prosecution, the declining of a prosecution, any issue relating to delay in the prosecution, any decision to stay a prosecution and the "exercise of any other aspect of prosecutorial discretion". Therefore, the Ombudsman can review and investigate a claim that a prosecutor insulted a victim but he/she cannot investigate a claim that a prosecutor struck a ‘sweet deal’ with the accused and allowed a negotiated plea to a much-reduced charge.
  3. Not only does the victim not have any ‘veto’ power over critical decisions which affect the victim, but the legislation does not generally mandate the right to participate in the proceedings. For example, British Columbia, New Brunswick and Prince Edward Island have weak provisions that require the victims’ views to be heard to the extent that it is "appropriate and consistent with criminal law and procedure". Due to the fact that the Federal government has constitutional authority over ‘criminal law and procedure’ it may be argued that provincial legislation cannot expand upon victim participation in any meaningful way until the Federal government determines whether the criminal process should include a form of participation greater than the victim impact statement.
  4. The legislative schemes do not provide for legal representation except for s. 3 of the British Columbia legislation which allows for a state-appointed lawyer for the victim in relation to production or disclosure of the victim’s personal and private information. Legal representation is an integral component of the effective implementation of rights. Victims are now provided with a wide-range of legal rights but are never provided with the benefit of independent legal advice to assist in the exercise of the rights.

Although Victims’ Bills of Rights have yet to generate any critical discussion, there has been one recent court case in which the proper interpretation of the Ontario Bill of Rights was brought into question (Vanscoy and Even v. Her Majesty the Queen in Right of Ontario, [1999] O.J. No.1661 (OntSupCtJus). Two crime victims had claimed that their rights had been violated because they were not notified of pending court dates and not consulted with respect to plea resolution agreements. They sought declarations under the Charter of Rights and Freedoms that section 2(5) of the Act (the provision barring civil suit for violations of the Act) violated s. 7 (fundamental justice) of the Charter. It was argued that the creation of a right without a remedy violated principles of fundamental justice. The judge dismissed the application on the basis that the Bill of Rights did not actually provide any rights for which a remedy should be provided. The court stated:

I conclude that the legislature did not intend for s. 2(1) of the Victims’ Bill of Rights to provide rights to the victims of crime… The Act articulates a number of principles, whose strength is limited not only by precatory language, but also by a myriad of other factors falling within the broad rubrics of availability of resources, reasonableness in the circumstances, consistency with the law and public interest, and the need to ensure a speedy resolution of the proceedings. Finally, even if there was an indefensible breach of these principles, the legislation expressly precludes any remedy for the alleged wrong. While the Applicants may be disappointed by the legislature’s efforts, they have no claim before the courts because of it. (Vanscoy and Even v. Her Majesty the Queen in Right of Ontario, [1999] O.J. No. 1661 (OntSupCtJus))

3.2.2.2 Victim Witness Assistance

In terms of victim assistance, the range of available services is broad and varies from province to province. Victim assistance can be provided in many different ways, although there are two characteristic modes of delivery: through a victim-witness program which serves to guide victims through the complexities of the criminal process, or through counselling and financial aid provided by social welfare agencies. The 1980s witnessed a series of evaluative studies of victim services in various Canadian jurisdictions, but in the 1990s the evaluations were few and far between. In addition, most evaluative studies concern the provision of welfare services and very little has been explored in relation to victim-witness programs and satisfaction with the administration of criminal justice.

In 1984, a study was conducted into the impact of the Winnipeg Victim/Witness Assistance program (Brickey, 1984) and victims reported that the program was valuable in providing answers to legal process questions and in reducing the stress from the impersonal nature of court process. It was recommended that the program be expanded. Since this study, the bulk of other studies have focussed upon the provision of welfare services. However, in 1987, a review of the Yukon Victim-Witness Assistance Program found this program to be effectively serving its target population although many victims were unaware of the service and as such it was underutilized.

Meredith, examined victim assistance programs in Richmond, British Columbia and found relatively high levels of victim satisfaction with services provided by the police; however, concern was expressed over unmet needs with respect to the provision of information concerning case progress and victim services. He concluded, "overall, the general surveys conducted for this report do not indicate that current procedures and services of the criminal justice and social service systems in Richmond are leaving important needs of crime victims unmet… With few exceptions, the individuals involved believed that the criminal justice system had treated them well… The portrait painted in this report has not been one of brutalized victims shabbily treated by the police and the courts" (Meredith, 1984:57).

Stuebing (1984), evaluated the experiences, concerns, problems and needs of 402 crime victims in Red Deer, Alberta. He identified five general sources of dissatisfaction:

  1. treatment of witnesses;
  2. perceived leniency;
  3. the handling of the case by the prosecutor;
  4. lack of information before trial;
  5. failure to be given opportunity to testify.

In addition, he identified five areas in need of improvement:

  1. a more systematic and complete provision of information to victims and witnesses of crime;
  2. less inconsistency and arbitrariness in the provision of crisis response and follow-up service to victims;
  3. further development and elaboration of the CP/PCR unit (Crime Prevention/Police Community Relations Unit);
  4. regular in-service training to enhance police awareness of victims’ needs and commitment to victim-oriented initiatives and;
  5. greater utilization of present opportunities for restitution and compensation as well as reexamination of the present lim tations on the use of these practices.

Similarly, Weiler and Desgagné reviewed the role of the victim as witness and concluded that victim services were deficient except for services provided for victims of sexual abuse. The report stated:

Developments in victim services in the social development field appear to be largely limited to those specialized victim programs and training initiatives for professional staff dealing with sexual abuse and family violence matters. There is little evidence to suggest that major initiatives have been undertaken by those responsible for the facilitation and development of victim services in encouraging or supporting developments attuned to the range of personal care and financial service requirements of victims in general. This reality is in sharp contrast to the strong support and interest expressed in surveys and conferences since 1980 among many organizations within the social development field. It is in contrast to the continued concerns expressed by many leaders representing police, the crown and courts that more direct responsibility for many required social services of victims be assumed by the existing social development network. These factors, coupled with the general interest in avoiding unnecessary duplication of services and improving the effectiveness of use of the existing service system, suggest a number of questions which merit consideration. Who should be responsible for financing and administration of the range of social development based services for victims such as mental health counseling? How are these services to be planned and developed? By whom? What relationship is to be developed between those responsible for the criminal justice and social development systems in the planning, development and coordination of these services? (Weiler & Desgagné, 1984:55)

Muir (1984; 1986), studied the provision of victim services in Calgary. She identified two concerns — proper notification of court process and compensation. Ironically, the need for compensation or restitution was expressed by legal professionals and not generally by victims; however, the low level of expressed financial need may be a product of "low awareness about the various kinds of compensation available" (Muir, 1984b:74). She also examined the Victim/Crisis Unit in which a special division of the police staffed with volunteers provided both crisis intervention and social service referrals. The services provided by this unit were favourably received by victims and a higher level of satisfaction was reported by victims who utilized this service as compared to victims who did not use the service. Muir (1986) provided some recommendations for improving police provision of welfare services and in particular, she recommended proper training for the police with respect to victims’ issues and creating a mechanism to "bridge the gap" between services available in the community and the service provided by the police at the scene.

The importance of the relationship between police and community services is underscored by a Canyltec Social Research report (1987) which found that provision of services by neighbour volunteers as opposed to police headquarters volunteers led to increased victim satisfaction. Although the data did not fully support a preference for neighbourhood provision of services, it did suggest that further studies be conducted to determine if the informal and neighbourhood-based service delivery model would be more effective than the conventional police headquarters service. Currie (1987) also concluded, in reviewing the Victim Support Worker Program in Vancouver (services for child sexual assault victims), that a community based program provides the most effective form of support. Finally, a 1992 review of the Child Victim-Witness Support Program in Toronto concluded that child welfare and criminal justice systems both lack adequate data to provide a rational basis for planning effective programs. With the increase in child testimony (as a result of changes to the Canada Evidence Act which facilitates the evidence of children), it has been concluded that the criminal justice system is ill-equipped to deal with these children and further education of criminal justice officials is indispensable in order to find effective ways to accommodate the special needs of child witnesses (Campbell Research, 1992).

Bragg reviewed the early victim assistance studies and concluded that victims had three basic needs and that these needs should be attended to by a co-ordinated effort of various social agencies, and not solely by the police. With respect to the needs of victims, she stated:

From these studies, the Research Division was able to accumulate considerable information regarding the needs of victims, and the level of services available to meet those needs. It seems that, in general, there are three types of needs for services as reported by victims. Immediately following an incident, victims express a need for emotional support, a sympathetic ear, and for those severely traumatized, a need for counselling. These crisis needs are usually met by friends and relatives. Professional help may be provided by crisis units of police departments, and various social services agencies such as transition houses or crisis centres. Wife assault victims may require emergency shelter, emergency transportation to a place of safety, and emergency financial aid for those who seek shelter away from home. These needs are usually met through friends or relatives, and sometimes through transition houses. In addition to the above-mentioned needs, some victims of crime also report the need for emergency medical aid or emergency home repair.

The second type of services desired by victims is follow-up services, usually in the form of information. For victims in general, this is more frequently cited than the need for crisis services. Most victims would appreciate more information on the progress of the case. Property crime victims are also interested in acquiring crime prevention information and assistance in speedy recovery of property. The majority of victims are unaware of the services that are provided by different agencies for victims of crime and would appreciate information on the availability of services in the community. This is especially true of wife assault victims who also require information on legal options and procedures.

For those victims who are subpoenaed as witnesses, they report a third type of need, which is court related. Witnesses are usually mystified by the court process, the role of the witness and their rights. They also would like to find out about the outcome of the case (as most are not informed after the case is concluded). (Bragg, 1986:4–5)

With respect to planning for the future, Bragg noted:

There has also been a change in the type of programs the research projects are involved in. An important finding from some of the earlier studies is that victims have multiple needs and that separate criminal justice and community agencies in isolation are not likely to meet the needs of victims adequately. This finding had led to the development of coordinated efforts to assist victims. Given this perspective, while recognizing the mandate of the Ministry with regard to policing, current projects are usually part of the coordinated programs rather than concentrating on victim assistance as linked to the police. (Bragg, 1986:16)

In 1991, a Department of Justice Canada study was conducted of victims’ needs and services in Nova Scotia (Murphy, 1991). Finding a disparity in the delivery of services the report recommended giving funding priority to rural victims, the elderly, children and victims of sexual abuse or domestic assault. The study recommended the creation of province-wide standards for service requirements and suggested that a victim advocate or case worker be provided to the victim to facilitate access to services.

The 1998 Annual Report of the Victims’ Services Division in Nova Scotia (Victims’ Services Division (N.S.), 1998) reviewed various models for the provision of victim assistance and concluded that the best model of service delivery would be one based within the Department of Justice Canada but administered by staff which was independent of criminal justice officials.

Drawing upon a report completed by victims’ rights groups (The Canadian Resource Centre of Victims of Crime), the Victim Services Division reached the following conclusion with respect to service delivery models:

Regional Victims’ Services was established in 1992 following a research study into the needs of victims of crime. In his 1991 report, Victims’ Needs and Service in Nova Scotia, Dr. Christopher Murphy stated that, "The province of Nova Scotia, through Victims’ Services Division… has a formal responsibility to deliver services and protect victims’ rights throughout the province."

Following consideration of the various models of service delivery, Dr. Murphy recommended adopting a system-based approach. The service was to be located within the Department of Justice, but independent of line-functions (i.e., Courts, Police, Prosecution Services, Corrections), thus enabling staff to take on an advocacy role within the system. In addition, the program would have strong links with the community to interface with other services to victims of crime.

At the time a system-based model of delivery was considered somewhat of a hybrid. Existing models were usually police-based, Crown/court or community based. Subsequently, the model has become well recognized. In a recent report on services to victims, Balancing The Scales: The State of Victims’ Rights in Canada (produced by the Canadian Resources Centre of Victims of Crime, 1998) four types of delivery models were identified:

  1. Police based victim services: usually located in police departments, these types of programs are designed to help the victims as soon as possible after their contact with the justice system begins. The types of services that police based programs may include are: death notification, information about the justice system, information about the investigation, assistance with victim impact statements and criminals injuries compensation applications, referrals, etc.
  2. Crown/court based victims/witness services: usually located in courthouses, and work very closely with the Crown’s office. The emphasis is on court preparation. The types of services offered may be: information about court process, tours of courthouse, emotional support throughout the court process, facilitate meetings with Crown, work with child witnesses/victims, etc. Obviously, victims usually only have contact with the Crown/court based programs if the police identify and arrest a suspect.
  3. Community based victim services: these types of programs are usually not government operated, but may benefit from government funding. These programs also usually specialize in the types of victims they deal with, i.e., sexual assault centres, domestic violence transition homes, etc.
  4. System based services: this is a relatively new approach to providing assistance to victims in that it is not "police" or "crown" based but "system" based. This means that the victim only has to go to one place to get the types of services they can access from both police and crown based programs. The system based model has been adopted by both PEI and Nova Scotia. (Canadian Resource Centre: 6-7)

In the discussion on the different models of victim services the report of the Canadian Resource Centre of Victims of Crime concluded:

Probably the model victim service is one that can assist different types of victims through the system. For example, what domestic violence victims need is different from what the parents of a murdered child need. The model service is also one that can provide assistance and information on all the rights that victims have such as: compensation programs, what the provincial act says, what protection the Criminal Code offers young witnesses and sexual assault victims, what services are available in the community, etc. The service should also help victims communicate with both police and Crown. (Canadian Resource Centre: 6-7)

Finally, there have been some recent studies of the Saskatchewan Victims of Domestic Violence Act. This legislation was passed in 1995 to provide special protective mechanisms for victims of domestic violence. Emergency Intervention Orders can be obtained from the court to issue restraining orders and removal orders from the matrimonial home. Victim assistance orders can be obtained from the Court of Queen’s Bench to provide greater access to long-term financial remedies, and warrants of entry can be issued to allow the police to enter a home to remove a cohabitant from the premise and collect evidence of victimization. A 1996 evaluative study indicated that awareness of the program was minimal and that the police and courts did not have an effective system for tracking cases (Prairie Research, 1996). A 1999 follow-up study indicated that the Emergency Intervention Orders were effectively providing short-term protection, but that, due to lack of training, longer term remedies by way of a victim assistance order have not been effective (Prairie Research, 1999).

3.2.2.3 Compensation

As with many social welfare schemes, provincial crime compensation schemes have been attacked as "radically underinclusive and under siege" (Roach, 1999a:300), but in the 1990s little was written on this topic and the available literature is generally more descriptive than prescriptive. Faieta (1989), and Bailey (1989), provide general outlines of the operation of various compensation schemes with emphasis on Ontario. Burns (1992), provides a detailed guide to the operation of all the provincial schemes and his overall assessment of their operation is encouraging:

The schemes are still relatively new and their administrators have been functioning under statutory guidelines that have been sometimes ambiguous and at times very narrow. There can be no doubt that the schemes have proved their worth. Countless crime victims have been and continue to be granted compensation for injuries they sustained as a result of their victimization. The fact that many of the schemes appear to have arbitrary inclusionary rules for recovery of compensation may be an argument for expanding their scope rather than disbanding them on the grounds of social inequity… At this stage, however, the schemes have evolved in terms of jurisdiction and practice to a point that apparently continues to satisfy the bulk of the public, the legislators and (presumably) the administrators themselves. Given the resources and the opportunity to gain access to them, the schemes should largely satisfy most of the victims of violent crime as well. (Burns, 1992:367–8)

It may be that the problems respecting compensation arise primarily as a result of a low level of awareness of the nature and function of the provincial service. A 1984 study by the Federal Solicitor General (Solicitor General Canada, 1984) found that only 13% of victims had been informed of their right to seek criminal compensation. This study reviewed victim awareness of seven urban jurisdictions, and it was concluded that fiscal restraint could be achieved through eligibility requirements and ceilings upon awards, and that fiscal restraint should not be achieved by uneven and arbitrary distribution of awareness and information.

Beyond these largely descriptive articles and books, there is also a significant body of literature of a critical nature exploring the failure of compensation boards to recognize the gendered nature of violence against women. Critical of decisions which have denied compensation to battered women, these articles make compelling arguments for the restructuring of the criteria of eligibility (Hughes, 1993; Langer, 1991; Weigers, 1994; Sheehy, 1994). The commentaries argue that the tribunals often engage in "blaming the victim", and this has resulted in the rejection of meritorious applications from battered women and prostitutes. In the 1980s, an assessment of compensation in Quebec confirmed that 21.7% of applications were rejected due to the victim’s fault (Baril et al., 1984). Complaints were also made in relation to the overly bureaucratic approach taken by the tribunal to the processing of claims. The 1994 Ontario Standing Committee on Administration of Justice did not cite "blaming the victim" as a recurring problem but did cite inordinate delay and inadequate levels of compensation as significant concerns (Ontario Legislative Assembly, 1994).