Restitution: An Update on the Numbers
By Susan McDonald and Naythan Poulin
Background
The 2021 issue of Victims of Crime Research Digest featured an article about restitution case law from 2015 to 2020 (Dhanjal and McDonald 2021). In the article, the authors note that “restitution - or compensation, as it was previously called — has been part of Canada’s Criminal Code since its inception in 1892.” (Ibid. 45)
The Canadian Victims Bill of Rights (CVBR) came into force and effect in July 2015. Sections 16 and 17 of the CVBR state:
16 Every victim has the right to have the court consider making a restitution order against the offender.
17 Every victim in whose favour a restitution order is made has the right, if they are not paid, to have the order entered as a civil court judgment that is enforceable against the offender.
The authors further note that: “Since 1892, many relevant amendments have been made to the Code, such as: changing the term ‘compensation’ to ‘restitution’ to better distinguish elements of sentences from payments by the state; including restitution orders in conditions of probation or conditional sentences; and expanding the damages that can be claimed. In July 2015, along with the CVBR,Footnote 129 a number of amendments to the restitution provisions in the Criminal Code came into effect, including: requiring judges to consider all requests for restitution; requiring judges to include in their decisions the reasons for not granting requests for restitution; the establishment of a standardized form (Form 34.1 in Part XXVIII of the Criminal Code) that victims can use to request restitution; requiring judges to ask prosecutors if victims have been given the opportunity to request restitution; and requiring judges to ignore the offender’s financial means or ability to pay when considering restitution orders.”Footnote 130 (Dhanjal and McDonald 2021, 45)
The authors considered only appellate level cases heard between March 2015 and December 2020, a total of 39 cases mostly from the Courts of Appeal in Ontario and British Columbia. For the most part, the case law mentioned neither the CVBR nor the right to request restitution. The New Brunswick Court of Appeal in Moulton v R, however, stated that the amendments to the restitution provisions in the Criminal Code made “inapplicable any restraint or caution courts may have believed they needed to exercise when considering a restitution order” (paragraph 31). According to the Court, these newly enacted provisions sent a “clear legislative message” that restitution must be considered during the sentencing process and, as such, the use of caution and restraint is no longer necessary.
In the current article, data on restitution orders made at sentencing are presented to understand: their frequency before and after the CBVR came into force; for which types of offences they are ordered; and whether there are differences across jurisdictions. In addition, this article includes descriptions of some provincial restitution programs.
A restitution order is considered a monetary penalty which a judge may impose as part of a sentence. They can be stand alone orders, or orders that are tied to probation conditions or conditional sentences. There are some key differences between the first and the latter two orders. Because the amount requested by the victim must be readily ascertainable and does not account for pain and suffering or other intangible costs, restitution is most often ordered in cases of fraud or theft. As can be seen in Table 3 below, it is less often ordered in cases of violence, or where a custodial sentence is imposed. The following section presents data to understand the effectiveness of restitution orders before and after the introduction of the CVBR.
Statistics
NOTE: Many of the jurisdictions have reported that the numbers presented in this article from the ICCS are an undercount of the restitution orders made in their jurisdiction. Future work will fully explore this undercount.
Statistics on restitution were provided by the Integrated Criminal Court Survey (ICCS). The ICCS combines both the Adult Criminal Court Survey and the Youth Criminal Court Survey, and is administered by Statistics Canada’s Canadian Centre for Justice and Community Safety Statistics (CCJCSS). The data presented are limited to the numbers and type of restitution orders by jurisdiction (Table 1), the numbers and types of restitution orders for those with federal sentences by jurisdiction (Table 2), and by the types of offence by jurisdiction (Table 3) for fiscal years 2010–11 through 2019–20.
In Table 1 below, the annual numbers have been grouped into pre-CVBR and post-CVBR for ease of presentation. Please note that the CVBR came into force and effect on July 23, 2015, but the data for that fiscal year have not been adjusted and the first quarter (April-June) of 2015–16 is captured in the post-CVBR group. Nonetheless, with the exception of the Yukon and Nunavut, the number of restitution orders made in each jurisdiction in the post-CVBR time period is less than prior to the CVBR. These data show that the absolute number of restitution orders made has decreased by 17% after the introduction of the CVBR in 2015. However, by looking at the percentage of cases with and without a restitution order (data not shown), it is possible to determine that the percentage of cases with and without a restitution order remained stable over the 10 years of data.
Table 1. Number and type of restitution order made by jurisdiction, 2010/11 to 2019/20
Pre-CVBR (2010/11 - 2014/15) | Post-CVBR (2015/16 - 2019/20) | |||||||
---|---|---|---|---|---|---|---|---|
Stand alone order | Order with conditional sentence | Order with probation | Total by jurisdiction | Stand alone order | Order with conditional sentence | Order with probation | Total by jurisdiction | |
NL | 528 | 0 | 0 | 528 | 493 | 0 | 0 | 493 |
PEI | 304 | 10 | 518 | 832 | 203 | 8 | 521 | 732 |
NS | 2,321 | 155 | 443 | 2,919 | 1,821 | 125 | 326 | 2,272 |
NB | 287 | 224 | 1,533 | 2,044 | 302 | 169 | 1,068 | 1,539 |
QC | 921 | 0 | 1 | 922 | 416 | 0 | 0 | 416 |
ON | 15,476 | 24 | 119 | 15,619 | 12,576 | 12 | 55 | 12,643 |
MB | 6 | 0 | 0 | 6 | 6 | 0 | 0 | 6 |
SK | 3,443 | 70 | 42 | 3,555 | 3,017 | 28 | 24 | 3,069 |
AB | 4,224 | 0 | 0 | 4,224 | 3,960 | 0 | 0 | 3,960 |
BC | 1,869 | 0 | 0 | 1,869 | 1,650 | 0 | 0 | 1,650 |
YT | 77 | 0 | 0 | 77 | 125 | 3 | 13 | 141 |
NT | 151 | 0 | 0 | 151 | 124 | 0 | 0 | 124 |
NU | 82 | 0 | 0 | 82 | 115 | 0 | 0 | 115 |
Total: | 29,689 | 483 | 2,656 | 32,828 | 24,808 | 345 | 2,007 | 27,160 |
Table 2 below presents the number of restitution orders made with federal custody sentences (those more than two years in duration) both pre- and post-CVBR.
Table 2: Number and type of restitution order for those with federal custody sentences, by jurisdiction, 2010/11 to 2019/20
Pre-CVBR (2010/11-2014/15) | Post-CVBR (2015/16-2019/20) | |||||
---|---|---|---|---|---|---|
Stand alone order | Order with probation | Total by jurisdiction | Stand alone order | Order with probation | Total by jurisdiction | |
NL | 4 | 0 | 4 | 7 | 0 | 7 |
PEI | 9 | 1 | 10 | 5 | 2 | 7 |
NS | 63 | 2 | 65 | 44 | 2 | 46 |
NB | 14 | 0 | 14 | 14 | 1 | 15 |
QC | 5 | 0 | 5 | 0 | 0 | 0 |
ON | 105 | 0 | 105 | 110 | 0 | 110 |
MB | 0 | 0 | 0 | 0 | 0 | 0 |
SK | 26 | 0 | 26 | 35 | 0 | 35 |
AB | 71 | 0 | 71 | 78 | 0 | 78 |
BC | 42 | 0 | 42 | 34 | 0 | 34 |
YT | 0 | 0 | 0 | 0 | 0 | 0 |
NT | 0 | 0 | 0 | 0 | 0 | 0 |
NU | 0 | 0 | 0 | 0 | 0 | 0 |
Total: | 339 | 3 | 342 | 327 | 5 | 332 |
According to Table 3, crimes against property represent the most common type of offence for which restitution orders are made (n=48,321, 80%), followed by crimes against the person (n=5,288, 9%), administration of justice (n=2,985, 5%), other Criminal Code offences (n=2,958, 5%) and federal statutes (n=342, 1%). Fraud and theft fall into the broad category of crimes against property; across all jurisdictions, these two offences consistently have the largest numbers of restitution orders. These statistics are consistent with previous Canadian analyses of restitution orders by type of offence. For example, McDonald (2009) looked at restitution orders made between 1994 and 2007, and found that crimes against property also represented 80% of all orders.
Table 3: Number of restitution orders by type of offence by jurisdiction, 2010/11 to 2019/20
Crimes against property | Crimes against the person | Admin of justice | Other Criminal Code offenses | Other federal statutes | Total by jurisdiction | |
---|---|---|---|---|---|---|
NL | 929 | 34 | 11 | 40 | 7 | 1,021 |
PEI | 1,333 | 99 | 51 | 65 | 3 | 1,551 |
NS | 3,962 | 515 | 414 | 279 | 10 | 5,180 |
NB | 2,869 | 328 | 213 | 156 | 9 | 3,575 |
QC | 693 | 246 | 152 | 83 | 162 | 1,336 |
ON | 23,083 | 2,621 | 1,000 | 1,503 | 46 | 28,253 |
MB | 5 | 1 | 4 | 2 | 0 | 12 |
SK | 5,260 | 391 | 635 | 255 | 44 | 6,585 |
AB | 6,678 | 710 | 364 | 375 | 42 | 8,169 |
BC | 2,959 | 285 | 112 | 148 | 13 | 3,517 |
YT | 137 | 34 | 11 | 40 | 1 | 223 |
NT | 240 | 13 | 15 | 6 | 1 | 275 |
NU | 173 | 11 | 3 | 6 | 4 | 197 |
Total: | 48,321 | 5,288 | 2,985 | 2,958 | 342 | 59,894 |
Restitution Programs in Canada
The provinces and territories are responsible for the administration of justice and this, in general, includes the collection of monetary penalties such as fines, restitution, and federal, provincial and territorial surcharges. With stand-alone restitution orders, however, victims are normally responsible for directly obtaining payments from offenders, since restitution orders are made out to victims rather than to the state. In cases where restitution orders are part of the conditions of probation or of a conditional sentence, provincial and territorial probation and community correction officers can supervise the payment of restitution to the court, which then forwards the payment to the victim. Additionally, an offender who has a restitution order tied to probation or a conditional sentence may face further criminal prosecution if they breach any of the conditions, meaning if they do not pay their restitution orders (McDonald et al. 2010). Victims can file their restitution orders in civil court and pursue payment through civil-enforcement tools such as garnishing wages, seizing property or putting a lien on a property.
A bit of history helps to understand why victims must resort to civil justice to pursue their restitution. In 1988, former Bill C-89 sought to create a criminal enforcement scheme for restitution orders. After much study, it was determined that the costs and operational implications of former Bill C-89 would outweigh its potential benefits. Former Bill C-89 never came into force; Parliament decided to expand and support existing civil enforcement schemes (McDonald 2009).
The enforcement of restitution through civil courts can be a stressful, time-consuming and financially strenuous experience for victims. According to a Dutch study, civil litigation as a means for obtaining restitution was overall a disappointing experience for 36 victims who sought payments from offenders. In the study, victims listed the high estimated legal costs, the relatively low probability of a successful payment, and the emotional burden associated with civil court as major deterrents for proceeding with civil cases. Ultimately, the study found that civil litigation created “severe obstacles and limited chances of effective recovery” and that the desire for victims to participate in the process of recovering restitution from offenders decreased considerably when civil litigation was the only option provided (Hebly, Dongen and Lindenbergh 2014).
The obstacles encountered by victims and the limited effectiveness of payment recovery by civil litigation is also reflected in statistical findings. In the United States, federal judges issued approximately $33.9 billion in restitution orders between 2014–2016. Out of the total amount, only $2.95 billion has been collected, which represents a collection rate of 9% (Waterman 2021). Comparatively, a study of restitution initiatives in Saskatchewan found that the average collection rate in the province was 24% between 2003–2008 (McDonald et al. 2010). The limited research shows that without adequate support, obtaining payments through civil procedure can be an arduous and disappointing experience.
Restitution programs operate by providing a coordinator or liaison between victims, offenders and various agencies ttive communication and supervision regarding the progress of restitution payments. Additionally, most provincial restitution programs waive any cost of filing orders in civil court and some programs offer reasonable recovery methods. Those seeking restitution must submit all forms to the appropriate agencies as soon as possible after an individual has been charged with a crime. A Statement on Restitution cannot be accepted by a judge after sentencing; however, the issuance or non-issuance of a restitution order does not limit an individual from seeking damages in civil court.
At this time, five provinces have restitution programs: British Columbia, Alberta, Saskatchewan, Nova Scotia and Prince Edward Island.Footnote 131 Other provinces, such as New Brunswick,Footnote 132 may have public legal education materials on restitution for victims. The following section presents information and procedures regarding restitution programs in these jurisdictions.
British Columbia
In British Columbia, a victim seeking restitution must complete a Statement on Restitution provided by the province. In most cases, the Ministry of Attorney General mails a Statement on Restitution form directly to victims, who use the form to document their losses, supported with receipts.
If an offender does not pay a restitution order, the victim may file their restitution order in civil court and initiate enforcement. At any point after a restitution order, a victim can also contact the Restitution Program to request assistance on stand alone restitution orders and on restitution ordered as part of a conditional sentence, probation order or peace bond. The Restitution Program supports victims by answering their questions and facilitating the transfer of payments. On active files, Restitution Program caseworkers encourage offenders to comply with restitution orders, assist offenders with developing voluntary payment schedules, provide payment reminders and follow up on missed payments. Caseworkers also liaise with probation and parole officers, and provide file updates to victims. Victims and offenders can voluntarily apply to the Restitution Program and program staff seek to ensure that all clients experience respect, dignity and empathy through a process of restitution that contributes to healing the harms caused by the commission of criminal offences.Footnote 133
Alberta
Victims seeking restitution in Alberta must fill out a two-page Statement on Restitution form, and claim only damages and losses directly related to the crime. Alberta considers the following to be eligible for restitution: loss of wages; moving costs; damage and theft to property; costs to get help for physical or psychological harm; and costs associated with fixing identity and credit ratings. The victim must clearly describe the damages and losses, and support their claims with documents such as bills, receipts and/or repair estimates. The victim submits a completed Statement on Restitution by email, letter mail, or by delivering it to the Crown Prosecution Office.
The Restitution Recovery Program (RRP) in Alberta addresses stand alone orders of restitution in the adult portion of the criminal justice system. The RRP does not address restitution that is a condition of probation, a conditional sentence order, or orders from youth court. Victims must choose to participate in RRP and can do so before the accused is sentenced. Page 2 of the Statement on Restitution form describes how to participate in the RRP. The RRP enables the state to better assist victims and hold offenders accountable through restitution. Should an offender not pay the court-ordered amount by the specified due date, the RRP locates the offender and takes whatever action is required to secure payment, such as filing writs, garnishing wages, applying liens and seizing property. Once a victim has opted-in to the RRP, there are no costs for the victim.Footnote 134
Saskatchewan
In 1975, the province established a restitution program within its adult corrections programming to supervise the enforcement of restitution orders. In 2005–2006, the province transferred the program to the Victims Services Branch within its Ministry of Justice and Attorney General. The transfer was designed to broaden the scope of restitution recovery by not only increasing the monitoring of offenders and payments, but also by providing information to victims and by eventually increasing services to victims through the program’s enforcement mechanisms.
To apply to the program, a victim must complete a one-page Statement on Restitution form and can also submit a Victim Impact Statement. In the Statement on Restitution, the victim provides a detailed account of damages and losses of property, losses due to physical injury, expenses incurred for temporary housing and financial losses due to fraud. All damages and losses of property must be supported by invoices or receipts. While both forms should be sent to the nearest agency as soon as possible, both can only be processed upon conviction of an accused and prior to sentencing.
If the accused is found guilty, a judge will review the Statement on Restitution and determine if a restitution order is necessary. If a restitution order is issued, the victim will be notified of the amount and repayment terms. Eligible victims can join Saskatchewan’s Restitution Civil Enforcement Program (RCEP) by contacting the Program and registering their restitution order with the Ministry of Justice and Attorney General (free of charge). Once a restitution order is registered, collection officers attempt to locate the offender and set up a repayment plan and payments are processed through provincial court and remitted to the victims. Collection officers may also register the restitution order with the Court of Queen’s Bench, Judgements Registry and with the Information Services Corporation. If eligible assets are identified, the collection officers work in conjunction with the Sheriff’s Office to serve the appropriate documents and process seizures.Footnote 135
Nova Scotia
Nova Scotia’s Victim Services Restitution Program requires victims to apply by completing a one-page Request for Restitution form documenting losses and expenses caused by the criminal incident.
If an offender refuses to pay a stand alone restitution order by the established deadline, the victim must pursue civil enforcement to receive payment. Probation officers can enforce restitution orders that are part of a probation or conditional sentence order. Provincial Victim Services provides information about restitution and civil litigation, but is not authorized to collect money or property; victims are responsible for enforcing orders and collecting payments.
With the assistance of a Victim Services Restitution Coordinator, a victim can seek civil enforcement by following five steps:
- Gather as much information as possible about the offender, including full legal name and address, and names of bank and lawyer.
- File the restitution order as a judgement with the Nova Scotia Supreme Court. The victim must first obtain a certified copy of a restitution order from a clerk at the court that issued the order, then file it at the Administrative Office of the Nova Scotia Supreme Court.
- Complete and submit the Certificate of Judgement and Executive Order forms; both are available online and from the Administrative Office of the Nova Scotia Supreme Court. Completed copies must be submitted to the Administrative Office.
- File the Certificate of Judgement at a local Land Registry Office, which will register it in the Personal Property Registry and the Judgement Roll. This enables a sheriff to seize personal property from offenders. Victims can also gain restitution from the sale and mortgage of land owned by the offender.
- After all filings are complete, an executive order authorizes a sheriff to seize the personal property of offenders, which can include money from banks accounts and vehicles.Footnote 136
Prince Edward Island
In 2016–2017, PEI established a Sheriff Restitution Officer to facilitate the enforcement of stand alone (s.738) restitution orders. Once a judge issues a stand alone order, the court prepares the necessary civil documents and forwards copies to both the Sheriff Restitution Officer and the victim.Footnote 137 The Sheriff Restitution Officer then starts the collection process. Under the process, the offender is known as the debtor.
The Sheriff Restitution Officer renews writs annually prior to their expiration to avoid undue delays in collection and updates debtors regularly. Through ongoing discussions with police, and probation, correctional services and court staff, the Sheriff Restitution Officer maintains current information about debtors (i.e., address, employment, release dates, etc.) and updates files.
Restorative Justice Programs
Restorative justice (RJ) refers to “an approach to justice that seeks to repair harm by providing an opportunity for those harmed and those who take responsibility for the harm to communicate about and address their needs in the aftermath of a crime.” (FPT 2018) RJ processes can occur at any point in the criminal justice process: pre-charge, post-charge or post-sentencing. Restitution may be requested by a victim, or offered by an offender, during a RJ process (Wemmers et al. 2017). Since participation in a RJ process is voluntary for all parties, offenders tend to comply with restitution agreements. Additionally, studies conducted by Umbreit et al. (2001) have found that restitution is often inseparable from RJ processes, meaning that restitution is often part of the outcome.
Research Gaps and Outstanding Questions
Very little research on restitution has been done in Canada. Important questions remain unanswered, such as: How many victims request restitution? What is the collection rate of restitution payments before and after the implementation of a restitution program? How many restitution orders are filed in civil court each year?
There is also interest in being able to track the effectiveness of restitution in RJ programs. Overall, knowing which interventions facilitate the full payment of restitution might lead to increased use of this monetary penalty.
Conclusion
This article presented the numbers and types of restitution orders across jurisdictions based on ICCS data for 2011–12 to 2019–20. While there are some limitations to the ICCS data, the total numbers of orders made decreased in all but two jurisdictions pre- to post-CVBR, while the percentages of cases with or without orders remained stable. The article also outlined current restitution programs in Saskatchewan, Alberta, Nova Scotia and British Columbia.
References
- Alberta. Victim restitution and recovery. Accessed January 12, 2022 at: https://www.alberta.ca/victim-restitution-and-recovery.aspx
- British Columbia, Victims of Crime. Victim Restitution. Accessed January 12, 2022 at: https://www2.gov.bc.ca/gov/content/justice/criminal-justice/bcs-criminal-justice-system/if-you-are-a-victim-of-a-crime/victim-of-crime/victim-restitution
- Dhanjal, Kanchan and Susan McDonald. 2021. Restitution: An Update on the Case Law. Victims of Crime Research Digest (14): 45-55. Ottawa: Department of Justice Canada. Available at: https://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rd14-rr14/index.html
- Federal Provincial Territorial Ministers Responsible for Justice and Public Safety. 2018. Principles and Guidelines for Restorative Practice in Criminal Matters. Accessed January 21, 2022, at https://scics.ca/en/product-produit/principles-and-guidelines-for-restorative-justice-practice-in-criminal-matters-2018/
- Hebly, Marnix, Josanne Dongen and Siewert Lindenbergh. 2014. Crime victims’ experience with seeking compensation: a qualitative exploration. Utrecht Law Review 10(3): 27-36.
- McDonald, Susan. 2009. Understanding Restitution. Victims of Crime Research Digest, No.2 at 10-16. Ottawa: Department of Justice Canada. Available at: https://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rd09_2-rr09_2/toc-tdm.html
- McDonald, Susan, Melissa Northcott and Jacinthe Loubier. 2010. Restitution in Saskatchewan. Ottawa: Department of Justice Canada. Available at: https://publications.gc.ca/collections/collection_2018/jus/J4-82-2018-eng.pdf
- Nova Scotia, Department of Justice, Victim Services Restitution Program. Restitution: Step-by-step. Accessed January 12, 2022 at: https://novascotia.ca/just/victim_services/_docs/VSRestitutionBookletScreen.pdf
- Saskatchewan. Victim Impact Statement and Restitution. Accessed January 12, 2022 at: https://www.saskatchewan.ca/residents/justice-crime-and-the-law/victims-of-crime-and-abuse/victim-impact-statement-and-restitution
- Umbreit, M. S., R. B. Coates and B. Vos. 2001. The impact of victim-offender mediation: two decades of research. Federal probation 65(3): 29-35.
- Waterman, Dana A. 2020. A Defendant’s Ability to Pay: The Key to unlocking the Door of Restitution Debt. Iowa Law Review 106(1): 455-482.
- Wemmers, Jo-Anne, Marie Manikis and Diana Sitoianu. 2017. Restitution in the Context of Criminal Justice. Montreal: International Centre for Comparative Criminology, University of Montreal.
Cases Cited
Moulton v R, 2018 NBCA 19
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