Victims Rights: Enhancing Criminal Law Responses to Better Meet the Needs of Victims of Crime in Canada

Introduction

Criminal victimization has far reaching negative consequences on individuals, their families and on society at large. The Government of Canada recognizes this and the critical importance of ensuring that our laws, programs and policies reflect the basic principle that every victim should be treated with courtesy, compassion and respect. The Government of Canada has made meeting the needs of victims of crime a central component of its criminal justice reform agenda and has committed to finding new and innovative solutions that meet those needs.

On February 4, 2013, the Minister of Justice announced the Government of Canada’s intention to move forward with legislation to create a Victims Bill of Rights. To inform the development of this legislation, the Government of Canada is seeking the views of stakeholders representing provincial and territorial governments, a variety of sectors within the criminal justice system, civil society and victims themselves. The purpose of this paper is two-fold. First, it provides an overview of the Canadian context and the recent efforts taken to improve responses to victims of crime. Second, it seeks to solicit public views on a Victims Bill of Rights including in respect of the following areas:

• Purpose
• Potential scope and content of victims rights
• Effect of legislated rights, and
• Remedies.

Context

Available statistics provide important context in understanding the nature and extent of criminality and criminal victimization in Canada:

• There were almost two million Criminal Code violations reported to police in 2011.
• There were more than 424,400 violent incidents reported to police in 2011. Violent crime accounted for about one-fifth of the offences reported to police in 2011.
• Although most types of violent crime decreased or remained stable in 2011, there was a 7% increase in the rate of homicides.
• The total costs of crime have been estimated at $99.6B per year – the majority of which ($82.5B or 83%) was borne by victims:
• $14.3 billion is directly attributable to tangible costs such as medical attention, hospitalizations, lost wages, missed school days, stolen/damaged property.
• Productivity losses represent 47% of the tangible costs borne by victims followed by stolen/damaged property (42.9%) and health care costs (10.1%).
• Total intangible costs (including pain and suffering and loss of life) is $68.2 billion.

Responding to Victims of Crime in Canada: A Shared Responsibility

In Canada, the federal government and provincial/territorial governments (PTs) share responsibility for responding to victims of crime. Provinces are primarily responsible for the administration of justice, including law enforcement, prosecutions, and services to victims of crime, including criminal injuries compensation. The federal government’s role focuses on the Criminal Code andthe Corrections and Conditional Release Act (CCRA).

Canada’s Charter of Rights and Freedoms

Canada is a federal state in which legislative jurisdiction is divided between the federal Parliament and the provincial and territorial Legislatures. The federal government has constitutional authority for the enactment of criminal law and criminal procedure, while the provinces and territories have constitutional authority over the administration of justice, including the investigation and prosecution of the majority of criminal offences. Canada’s criminal laws serve two broadly stated primary policy objectives: (1) security objectives including the preservation of peace, protection of the public and the prevention of crime; and (2) justice objectives including ensuring that there is equity, fairness and providing guarantees for the rights and liberties of individuals charged with criminal offences. The Canadian Charter of Rights and Freedoms (the Charter) plays a crucial role in safeguarding these rights.

While the Charter does not specifically enshrine rights that are specific for victims of crime, a number of constitutionally protected rights are important to consider when discussing victims rights. Several Supreme Court of Canada cases have assessed how fundamental justice includes consideration of the rights of victims. Victims rights have always been balanced with rights of the accused, “a just and proportionate balance … based on the particular case before the court.” (R v. NS (2012, SCC)).

Canadian Statement of Basic Principles of Justice for Victims of Crime (Canadian Statement).

In 1988 and in 2003, the federal, provincial and territorial ministers of Justice endorsed the Canadian Statement. This document was based on the United Nations' Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985). Notwithstanding their declaratory status, these basic principles continue to guide the development of policies, programs and legislation for victims of crime. The Canadian Statement is below.

Federal Measures

The Criminal Code includes provisions to facilitate or recognize the participation of victims of crime in the criminal justice system such as:

• the presentation of victim impact statements;
• consideration of victim safety at bail hearings;
• federal victim surcharge;
• publication bans;
• testimonial aids; and
• restitution orders.

More information on these subjects can be found in the Glossary of Victim focussed provisions in the Criminal Code.

The CCRA also includes provisions to enhance the role of victims of crime in the corrections and conditional release system such as:

• the presentation of victim impact statements;
• mandatory and discretionary information to be provided to registered victims; and
• consideration of victim safety at parole hearings.

The CCRA governs the Correctional Service of Canada (CSC), which is responsible for supervising federal offenders in custody and in the community. It also governs the Parole Board of Canada (PBC), whose members assess the risk of offenders committing another offence and decide whether to release them into the community. The CCRA recognizes victims of crime are an important part of the criminal justice system and gives them an opportunity to participate in the federal corrections and conditional release process. It entitles victims who make a request to be provided with certain information about the offender who has harmed them and to be informed about decisions made by the PBC and CSC about that offender. The CCRA also provides victims with opportunities to present information that may contribute to specific key decisions.

The Correctional Service of Canada and the Parole Board of Canada do not automatically inform victims about an offender. The law specifies that this information only be given upon request, as some victims prefer not to receive any further information about the offender. A victim or a victim's family, can ask for basic, publicly available information such as:

• the offence the offender was convicted of and the court that convicted the offender;
• when the sentence began and the length of the sentence; and
• the eligibility and review dates of the offender for unescorted temporary absences, day parole and full parole.

Victims may request additional information that is not usually disclosed to the public. To do so, they must meet the definition set out in the law and request to receive further information (commonly referred to as registering). More information may be released if the Chairperson of the Parole Board of Canada or the Commissioner of the Correctional Service of Canada (or delegated staff) determines that the interest of the victim clearly outweighs any invasion of the offender's privacy that could result from the disclosure. Registered victims may also ask to receive ongoing information so they may be informed of changes, such as an offender transfer from one institution to another.

At the federal level, programs and other measures for victims of crime are made available by the Department of Justice Canada, Public Safety Canada and its agencies (the Parole Board of Canada, Correctional Services of Canada, and the Royal Canadian Mounted Police), the Public Prosecution Service of Canada, and Human Resources and Skills Development Canada. These organizations variously provide access to funding to enable victim participation at parole hearings, access to information about offenders, services to attend release hearings, emergency and first-response services, assistance at criminal trials in the territories and federal income support for parents of murdered and missing children. The Office of the Federal Ombudsman for Victims of Crime addresses victims’ complaints and inquiries vis-à-vis federal corrections and conditional release.

Provincial/Territorial Measures

All provinces and territories have legislation for victims of crime; in some cases, this legislation includes provisions worded as “rights.” Statutory rights for victims of crime at the provincial and territorial level have many common elements: right to information, right to consideration of personal safety, and right to respectful treatment. Several of these statutes limit or exclude any remedies for a breach of these rights: for example, “no order, conviction or sentence may be appealed on the grounds that a right granted by this Act has been infringed or denied” (Nova Scotia’s Victims Rights and Services Act, S.N.S 1989, c. 14). Only Manitoba explicitly provides a remedy for a breach of its Victims Bill of Rights.

Provincial/territorial victim legislation create a definition of "victim" for access to victim services in each jurisdiction and govern the victim services or compensation regime in that jurisdiction. Various provincial/territorial definitions of victim include individuals and their family if the perpetrator has been identified, apprehended, or prosecuted. The specific services offered to victims vary between jurisdictions but may include: the provision of information; referrals to community services; short-term counselling; court preparation and accompaniment; assistance in the completion of victim impact statements; and corrections information.

Each of the provinces and territories has established different models for the delivery of services to victims in order to best suit the needs of victims in that province or territory. Some offer police-based services (services provided at the time of the crime by victim services which work with the police) or court-based services (services which assist victims and witnesses during court proceedings) while others offer system-based services which provide a continuity of services throughout all stages of the criminal justice system.

Social programs such as universal health care, emergency housing, legal aid and social assistance are generally administered at the provincial/territorial levels. Eligibility for such services does not hinge on whether a person has been identified as a victim of crime. Rather, eligibility will vary depending on the jurisdiction in which the person is residing and the legislative framework which sets out eligibility for such services in the particular jurisdiction. Also, an extensive shelter network exists across Canada, funded by the federal, provincial and territorial governments. According to the most recent estimates (2009), there were 498 emergency shelters, 123 transitional shelters and 82 shelters providing services to women who have experienced violence. Finally, health services are administered primarily at the provincial/territorial levels.

At a meeting on October 1, 2003 Federal, Provincial, Territorial Ministers Responsible for Justice endorsed a new Canadian Statement of Basic Principles of Justice for Victims of Crime, 2003 that modernizes the statement of principles issued at their 1988 meeting. These basic principles continue to guide the development of policies, programs and legislation related to victims of crime. They also provide a foundation for the Policy Centre for Victim Issues' work.

In honour of the United Nations' Declaration of Basic Principles of Justice for Victims of Crime, and with concern for the harmful impact of criminal victimization on individuals and on society, and in recognition that all persons have the full protection of rights guaranteed by the Canadian Charter of Rights and Freedoms and other provincial Charters governing rights and freedoms; that the rights of victims and offenders need to be balanced; and of the shared jurisdiction of federal, provincial, and territorial governments, the federal, provincial, and territorial Ministers Responsible for Criminal Justice agree that the following principles should guide the treatment of victims, particularly during the criminal justice process.

The following principles are intended to promote fair treatment of victims and should be reflected in federal/provincial/territorial laws, policies and procedures:

1. Victims of crime should be treated with courtesy, compassion, and respect.
2. The privacy of victims should be considered and respected to the greatest extent possible.
3. All reasonable measures should be taken to minimize inconvenience to victims.
4. The safety and security of victims should be considered at all stages of the criminal justice process and appropriate measures should be taken when necessary to protect victims from intimidation and retaliation.
5. Information should be provided to victims about the criminal justice system and the victim's role and opportunities to participate in criminal justice processes.
6. Victims should be given information, in accordance with prevailing law, policies, and procedures, about the status of the investigation; the scheduling, progress and final outcome of the proceedings; and the status of the offender in the correctional system.
7. Information should be provided to victims about available victim assistance services, other programs and assistance available to them, and means of obtaining financial reparation.
8. The views, concerns and representations of victims are an important consideration in criminal justice processes and should be considered in accordance with prevailing law, policies and procedures.
9. The needs, concerns and diversity of victims should be considered in the development and delivery of programs and services, and in related education and training.
10. Information should be provided to victims about available options to raise their concerns when they believe that these principles have not been followed.

Testimonial Aids

The Criminal Code provides for testimonial aids and can include screens which prevent a witness from seeing the accused, the ability to provide testimony via close-circuit television, the use of video-recorded evidence, the use of a voice amplifier, and the ability to have support person present and close to the witness in the courts.

Publication Bans

The Criminal Code provides that the judge may make an order to protect the identity of any complainant or witness, or any information that could disclose his or her identity, if the judge is satisfied that the order is “necessary for the proper administration of justice.” A judge mustorder a publication ban to protect the identity of all victims of sexual offences and witnesses of sexual offences who are less than 18 years old, once an application has been made by the complainant, the prosecutor or any such witness.

Victim Impact Statements

The Criminal Code requires the court to consider a victim impact statement at the time of sentencing an offender. The victim impact statement describes the harm done to or loss suffered by the victim of the offence. The form of the statement must be in accordance with procedures established by a victim impact statement program designated by the Lieutenant Governor in Council of the province. A court can also receive a Community Impact Statement in fraud cases that would describe the losses suffered as a result of the fraud perpetrated against a particular community, such as a neighbourhood, an association or a seniors’ group.

Restitution

Restitution is a discretionary sentence made in addition to another sentence. The sentencing judge will only make a restitution order in appropriate cases taking into account the sentencing principles and the facts of the individual case. Restitution will not be ordered in all cases where there is monetary loss or damages. The judge must consider whether a restitution order should be included in the sentence. The ability of the offender to pay a restitution order will be a consideration. The amount of the restitution order must be readily ascertainable.

Surcharge

A victim surcharge is an additional penalty imposed on convicted offenders at the time of sentencing. It is collected and retained by the provincial and territorial governments, and used to help fund programs, services and assistance to victims of crime in the province or territory where the crime occurred.