Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada

4. Findings From Criminal Justice Professionals

4. Findings: Criminal Justice Professionals

This section of the report integrates the findings from the survey self-completed questionnaires and interviews with criminal justice professionals.

4.1 Role of the Victim in the Criminal Justice Process

While victim services providers and advocacy organizations were most supportive of an active role for victims, there is considerable agreement among all respondent groups that victims of crime have a legitimate role to play in the criminal justice process. In interviews, victim services providers emphasized that providing information to victims and giving them opportunities for input not only empowers victims, but also allows victims to gain a better understanding of the criminal justice system as a whole and a greater acceptance of decisions made in their case.

Crown Attorneys, defence counsel and judges, for their part, regard the victim primarily as a witness and a source of information. They generally believe that victims are entitled to be consulted to some extent, especially before irrevocable steps are taken, although support for consultation was less prevalent among defence counsel than among Crown Attorneys and judges. Respondents from all three groups cautioned that the criminal justice system must deal with the accused in a manner that serves the public interest and protects society. They emphasized that decision-making ultimately must remain with the court and the Crown Attorney, who are more knowledgeable about the law and can be more objective. Concern was expressed that allowing too large a role for victims would erode the principle of innocent until proven guilty and thereby distort the criminal justice process. However, as Table 41 indicates, a sizeable minority (ranging from 49% to 23%) of Crown Attorneys, defence counsel and judges think the victim should be consulted at bail decisions, plea negotiations and sentencing.

Table 41 shows how criminal justice professionals interpret the role of the victim with respect to three specific aspects of the criminal justice process: bail decisions, plea negotiations, and sentencing.

Table 41 : WHAT ROLE SHOULD VICTIMS HAVE IN THE FOLLOWING STAGES OF THE CRIMINAL JUSTICE PROCESS (I.E., SHOULD VICTIMS BE INFORMED, CONSULTED OR HAVE NO ROLE)?

Bail Decisions

Among the criminal justice professionals surveyed in this research, a substantial proportion in all categories believes that victims should be consulted in bail decisions. Advocacy organizations, victim services, and police were most likely to support a consultative role for victims at bail, followed by Crown Attorneys and judges and lastly by defence counsel. In interviews, victim services providers pointed out that victims can sometimes shed light on prior unreported criminal activity in which the accused may have been involved and past breaches of conditions, and can thus assist the court in determining appropriate conditions in bail decisions. While about half of Crown Attorneys surveyed believe that victims should be consulted in bail determinations, several emphasized in interviews that victims should not be involved in the decision to release or detain the accused. Similarly, judges explained in interviews that victims should make their safety concerns known to the police and to the Crown Attorney, whose responsibility it then becomes to bring these concerns forward to the court.

Among defence counsel surveyed, one-third believe that victims should be consulted, while about half believe that victims should simply be informed, and one-fifth believe that they should have no role at all. In interviews, defence counsel expressed their conviction that the victim's input should never be determinative, although they acknowledged the Crown Attorney's need to get information from the victim about safety issues and the desirability for some amount of victim input about conditions. A few of those interviewed said that any victim involvement in bail determinations erodes the presumption of innocence and should, therefore, be very limited.

Plea Negotiations

Compared to bail decisions, a slightly smaller proportion of victim services providers and Crown Attorneys support consulting with victims during plea negotiations (the opposite was true for advocacy groups). Slightly more than 60% of victim services providers and 44% of Crown Attorneys surveyed believe that victims should be consulted at this stage. Several Crown Attorneys acknowledged in interviews that consultation helps to ensure that the Crown Attorney considers all of the relevant facts and issues in any negotiations, and a few said that it is appropriate for victims to have input where restitution and conditions are involved. However, even Crown Attorneys who think that victims should be consulted emphasized that the victim's views are only one element in the Crown Attorney's decision. Observing that victims lack objectivity and knowledge of the law, Crown Attorneys said in interviews that prosecutorial discretion must prevail in order to ensure that decisions accord with the interests of society. Fourteen percent of Crown Attorneys surveyed believe that victims should have no role at all in plea negotiations.

Defence counsel are the least prepared of the respondent groups to accept a prominent role for victims in plea negotiations. One-quarter of those surveyed approve of consulting the victim, whereas almost 40% support keeping the victim informed, and the same proportion believes that the victim should have no role whatsoever. In interviews, defence counsel who favoured no role for the victim pointed out that the court decision whether to accept a plea must be based on the evidence, which is a legal issue that the victim cannot evaluate. Similarly, those who approved of consulting the victim during negotiations did so with the proviso that the Crown Attorney's discretion should remain unfettered.

Sentencing

There is also considerable support for consulting victims at sentencing. With the exception of defence counsel, between half and three-quarters of respondents surveyed in all categories approve of consulting the victim at this stage. In interviews, Crown Attorneys, judges, and victim services providers said that consultation at the sentencing stage should occur primarily by way of the victim impact statement. In addition, a few victim services providers suggested in interviews that victims should be permitted to make sentencing recommendations. This position, however, had no proponents among the other respondent groups.

In interviews, several Crown Attorneys and judges, and a few defence counsel, supported consulting victims for sentences served in the community, and a few judges noted that victims have the opportunity to contribute to crafting a sentence when restorative approaches are used. However, there is also general agreement that victims should not have any say regarding the length or severity of sentences. Crown Attorneys, judges, and defence counsel believe that it is inappropriate for victims to suggest or determine a sentence, since the court is obligated to consider society's interests in sentencing, which may differ from those of the individual victim. From their perspective, introducing a personal or emotional element into sentencing would result in dissimilar sentences for similar crimes based on individual victims' characteristics. Such a practice would threaten the credibility of the criminal justice system.

Other Aspects of the Criminal Justice Process

Some groups of criminal justice professionals were asked to comment on the victim's role in various other aspects of the criminal justice process. For example, police were asked for their view of the victim's role in the police investigation. Almost two-thirds of police surveyed believe that the victim should merely be kept informed of developments over the course of the police investigation; the remaining one-third support consultation. In interviews, police explained that victims should not play an active role in the police investigation beyond providing information about the facts. They stressed the importance of the victim's role (noting that often the victim is the only source of information available to support the investigation), but qualified this response by saying that information provided by victims might be coloured by emotion and therefore has to be objectively assessed.

Survey respondents representing parole agencies (NPB, CSC, and provincial parole boards) were asked for their view of the victim's role in conditional release decisions. More than half (55%) think that the victim should be consulted in these decisions, while 40% believe that the victim should simply be informed. CSC respondents were also asked about the victim's role in decisions about the offender's incarceration: 41% approve of consulting the victim, whereas 28% support keeping the victim informed, and 14% believe that the victim should not play any role.

Overall, criminal justice professionals believe that victims should be informed and involved in the criminal justice system. However, they also believe that victims do not fully understand the intricacies of the legal system and therefore should not be the ultimate decision-makers.

4.2 Responsibility of Criminal Justice Professionals to Victims

In both the interviews and the self-completed questionnaires, police, Crown Attorneys, and judges were asked to describe their responsibility to victims of crime through an open-ended question (i.e., no check list of possible responses was provided). All three groups identified responsibilities such as explaining the criminal justice system, keeping victims informed of the status of their case, and providing them an opportunity to be heard and considering their views.

Police Responsibility to Victims

Police perceive one of their most important obligations to be informing victims of the status of the police investigation; 56% of those surveyed mentioned this responsibility. Provision of information for victims by police is greatest at the outset of the criminal justice process. Almost all police surveyed (94%), for example, said that they generally provide victims with information about victim services. More than three-quarters maintain regular contact with victims of crime throughout the investigation, and approximately two-thirds usually inform victims about outcomes of bail decisions and about victim impact statements. Police involvement tapers off once a case has gone to court; less than two-thirds of those surveyed usually provide information about court dates, and just over half usually provide information about outcomes of court processes other than bail decisions. In interviews, several police observed that the amount of police contact with victims varies by the nature of the case and the individual officer.

As Table 42 shows, police surveyed also mentioned referring victims to appropriate services and resources (25%); ensuring their safety (19%); investigating complaints thoroughly (18%); and treating victims with compassion and respect (17%) among their other responsibilities.

TABLE 42: WHAT IS THE RESPONSIBILITY OF POLICE WITH RESPECT TO VICTIMSs?[19]
Responsibility: Police (N=686)
Inform victims of the status of the police investigation 56%
Refer victims to appropriate services 25%
Ensure the protection or safety of the victim 19%
Investigate complaints thoroughly 18%
Treat victims with compassion or respect 17%
Explain the criminal justice system 11%
Give victims priority 11%
Inform victims about their legal options 7%
Other 1%
No response 9%

The majority of police surveyed (67%) do not think that responding to victims' needs impedes their police work. On the contrary, in interviews, many police stressed that attending to victims' needs is an integral part of their work, although high workloads and limited resources compel them to prioritize their time. When asked how the needs of victims might be balanced with their time and resource restraints, police who were surveyed most often suggested that services to victims be provided by court-based or police-based victim services instead of by police themselves. This would allow police to focus their efforts on the conduct of the investigation.

Crown Attorney Responsibility to Victims

A substantial proportion of Crown Attorneys surveyed in this research believe that they have a responsibility to keep victims informed of developments as their case proceeds through the criminal justice system (46%); to explain to them the functioning of the criminal justice system (40%); and to listen to their views and concerns and take these into account when making decisions (25%).

As shown in Table 43, 15% of those surveyed observed that the Crown Attorney has a responsibility to act in the public interest. In interviews, Crown Attorneys explained that they, as the representative of the state, must see that cases proceed with respect to the Criminal Code. Crown Attorneys have an obligation to remain objective, to consider the whole facts, and to advance admissible evidence in what are alleged to be crimes. Their duties therefore include correcting the common misperception that the Crown Attorney is counsel for the victim. Important aspects of the Crown Attorney's role are to explain to victims the limits of criminal law and the criminal justice system, to make sure they understand the rules and criteria used in decision-making, and to make sure they have a realistic expectation of how their case might unfold. Although Crown Attorneys said that they always bear the victim's experience and opinions in mind, the victim does not and should not control the prosecution.

TABLE 43: WHAT IS THE CROWN ATTORNEY'S RESPONSIBILITY TO VICTIMS?[20]
Responsibility: Crown Attorneys (N=188)
Inform victims of the status of their case 46%
Explain the criminal justice system 40%
Listen to or consider the victim's views 25%
Act in the public interest 15%
Treat victims with respect 14%
Obtain information from the victim 10%
Prepare victims for testimony 9%
Explain Crown Attorney decisions 8%
Convey the victim's views to the court 6%
Ensure victims are not re-victimized 5%
Other 3%
No response 11%

Slightly fewer than 30% of Crown Attorneys surveyed believe that they have sufficient opportunity to meet with victims during a typical case; approximately two-thirds said that they do not. In interviews, many Crown Attorneys said that they prioritize their time to ensure that they devote sufficient attention to child victims and victims of sexual assault, domestic violence, murder, and other serious crimes, and meet with victims of other types of offences only if the victim initiates contact.

When asked what else Crown Attorneys should do to further assist victims if time were not an issue, 26% of those surveyed mentioned better pre-trial consultation and preparation; another 25% simply mentioned more consultation in general. In interviews, Crown Attorneys explained that they would like to be able to meet with victims well in advance of the court date, rather than on the day of the trial or hearing, and to extend to all victims the time and attention they devote to victims of violent crimes. Another 17% of Crown Attorneys surveyed said that they would like to be able to keep victims informed at every stage of the criminal justice process. However, 12% believe that they should not do anything further to assist victims.

In interviews, many Crown Attorneys emphasized the indispensable role of victim assistance workers in doing some of this work. Sixty-three percent of Crown Attorneys surveyed reported that victim and witness assistants are available to work with them in their offices.

Judicial Responsibility to Victims

As Table 44 shows, judges believe that their main responsibility to victims of crime is to give victims an opportunity to be heard; 42% of those surveyed mentioned this responsibility. In interviews, judges explained that the judiciary has a responsibility to provide a forum in which victims can be heard, to listen to their views and concerns, and to let them know that the court appreciates their concerns and the harm that has been done to them.

TABLE 44: WHAT IS THE COURT'S RESPONSIBILITY TO VICTIMS?[21]
Responsibility: Judiciary (N=110)
Listen to victims or give them an opportunity to be heard 42%
Provide a fair process or maintain an impartial role 18%
Protect the victim 17%
Treat victims with respect 14%
Explain the disposition 10%
Keep victims informed 9%
Apply the law 8%
Explain the law or the criminal justice process 3%
Other 6%
No response 12%

Some of the judges surveyed focused on the court's obligations to provide a fair and impartial process that will ensure that justice is done (18%) and to apply the law (8%). In interviews, judges expanded on these ideas, explaining that the judiciary has a responsibility to be fair to everyone who appears before it - whether victim, accused, or other member of the public. Some concern was expressed that since the introduction of victims of crime legislation, it is no longer clear how the judiciary is to balance its responsibility to victims with its responsibility to the accused and to society as a whole. Several judges observed, in interviews, that the judiciary must keep the public interest foremost in mind when balancing the rights of the victim with the rights of the accused.

Judges who were surveyed also mentioned their responsibility to protect the victim (17%), to treat victims with respect (14%), to explain the disposition of the case (10%), and to keep victims informed (9%). In interviews, judges at small sites noted that the judiciary has a responsibility to provide court facilities that allow victims to maintain a sense of dignity. In small rural or remote locations, it can be difficult to provide adequate facilities with separate waiting areas for victim and accused, courtrooms in which victim and accused sit apart from each other, and adequate interview rooms, telephones, and washrooms.