Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada
4. Findings From Criminal Justice Professionals (continued)
- 4.9 Restitution
4. Findings From Criminal Justice Professionals (continued)
4.9 Restitution
Restitution requires the offender to compensate the victim for any monetary loss or any quantifiable damage to, or loss, of property. The court can order restitution as a condition of probation, where probation is the appropriate sentence; or as an additional sentence (a stand-alone restitution order), which allows the victim to file the order in civil court and enforce it civilly if not paid. The following discussion of restitution considers the current use of restitution from the perspective of Crown Attorneys, defence counsel, and judges, difficulties with enforcement, and obstacles to requesting restitution.
4.9.1 Use of Restitution
When asked if they generally request that restitution be paid to a victim, when appropriate, most Crown Attorneys (89%) reported that they do, and a majority (59%) of judges surveyed concurred.[33] In interviews, judges who reported that Crown Attorneys do not usually request restitution in appropriate cases suggested that the time available to follow up with the victim to obtain the necessary information is often insufficient, particularly if there is an early guilty plea. In addition, several judges observed that it is often difficult to ascertain the monetary value of the loss suffered by the victim.
To determine views on when restitution should be requested, Crown Attorneys were asked what considerations motivate their decision to request restitution, and judges were asked when, in their view, restitution is appropriate. According to results from the survey of Crown Attorneys, the Crown Attorney's decision to request restitution is motivated primarily by the ability to quantify the losses (86%), but also by the victim's desire for restitution (64%) and by the offender's ability to pay (55%). In interviews, several Crown Attorneys observed that there is little point in requesting restitution if the offender has no income or is going to be incarcerated; although several said that they do not always know the offender's financial situation and therefore request restitution in all cases where the losses are quantifiable. Surveyed judges take a slightly different view from the Crown Attorney of when restitution is appropriate. While roughly the same proportion agree that damages must be quantifiable (87%), and the offender must be able to pay (61%), judges place less emphasis on the victim's desire for restitution (32%).
In interviews, defence counsel said that requests for restitution are rarely contentious when they are reasonable (i.e., the amount of loss is determinable, and the offender caused the loss and has the means to pay). Over three-quarters of defence counsel surveyed reported that they agree to reasonable requests for restitution (78%) and that judges also generally grant them (80%). In interviews, those defence counsel who generally object to requests for restitution listed the following reasons: the role of the criminal justice system is not to compensate victims; restitution is easily abused; offenders often do not have the ability to pay; and it is difficult to assess the value of claimed damages. When asked if they generally offer restitution to mitigate the sentence, three-quarters (76%) of defence counsel surveyed said that they do, with 15% reporting that they do not usually make this offer.
The use of restitution among Crown Attorneys and defence counsel is shown in Table 74.
| Crown Attorneys (N=188) | Defence Counsel (N=185) | |
|---|---|---|
| Do you generally request, when appropriate, that restitution be paid? | Do you generally agree to requests for restitution? | |
| Yes | 89% | 78% |
| No | 9% | 20% |
| No response | 2% | 2% |
Two-thirds (68%) of Crown Attorneys reported that judges usually grant requests for restitution. In interviews, they prefaced this response with the proviso that judges usually grant restitution when the offender has the ability to pay, although the judge sometimes reduces the amount in consideration of the offender's circumstances. A majority (59%) of probation officers also reported that restitution is usually ordered as a condition of probation in appropriate cases.
4.9.2 Problems with Enforcement
When asked if they think that restitution enforcement is a concern or a problem, two-thirds (62%) of probation officers and half of Crown Attorneys (53%) reported that they do; compared to one-third (34%) of defence counsel. A sizeable proportion of defence counsel (30%) could not comment because they are not involved in enforcement of restitution orders.
The survey asked these respondents to explain why they consider restitution enforcement to be a concern or a problem. The results are presented in Table 75 below. Crown Attorneys, defence counsel, and probation officers gave several reasons for the difficulties with enforcement. The most common reason given by all three groups (one-fifth of Crown Attorneys, one-half of defence counsel, and one-third of probation officers) is that restitution orders are made in cases where the accused is not able to pay.
About one-fifth of Crown Attorneys (20%) and defence counsel (16%) also pointed to insufficient resources for enforcement, although no probation officers noted a lack of resources. This was further commented on in interviews. Defence counsel said that when restitution is part of probation orders, enforcement is not given priority because it is simply not worth it; enforcement requires a significant expenditure of resources to collect relatively small amounts of money. Likewise, Crown Attorneys intimated that not much effort is made, stating that payment does not often occur because the criminal justice system is not a collection agency. In their survey responses, Crown Attorneys and probation officers also pointed to the difficulty of convicting an offender on a breach of probation as an obstacle to enforcement (13% and 18%, respectively). While in theory, offenders can be charged with a breach of probation for failing to abide by their restitution order, such charges are rare because the Crown Attorney must prove that the offender wilfully broke the order. Even if the offender is charged with a breach, the typical consequence is a small fine much lower in value than the restitution order itself.
The other option is a stand-alone restitution order, where the victim has recourse to the civil courts to enforce payment. A small number of Crown Attorneys (19%), defence counsel (8%), and probation officers (4%) all noted that the problem with this method of enforcement is that it requires the victim to engage in a difficult legal process and bear all the costs of enforcement. In interviews, Crown Attorneys pointed out that this is not a realistic option for many victims of crime. Table 75 provides the complete results.
| Reasons: | Crown Attorneys (n=100) | Defence Counsel (n=62) | Probation (n=128) |
|---|---|---|---|
| Accused are unable to pay | 22% | 47% | 30% |
| Insufficient resources for enforcement | 20% | 16% | -- |
| Civil enforcement difficult or victim responsibility | 19% | 8% | 4% |
| Difficult to convict on breach of order | 13% | -- | 18% |
| No penalty for failure to pay | 6% | -- | 9% |
| Restitution usually not made unless paid at sentencing | -- | 13% | -- |
| Probation is not involved | -- | -- | 26% |
| Other | 6% | 11% | 7% |
| No response | 22% | 10% | -- |
Note: Respondents could provide more than one response; totals sum to more than 100%.
4.9.3 Obstacles to Requesting Restitution
Victim services providers surveyed were split on the issue of whether victims usually request restitution. One-fifth believe that eligible victims usually request restitution (20%), and one-third disagree (33%). The remaining respondents did not have enough direct experience to comment (47%). In interviews, victim services providers stated that it depended on the offence. Several victim services providers indicated that restitution was not applicable to certain cases such as domestic violence and was more often requested in cases involving property crimes.
About one-third (30%) of victim services providers and 40% of advocacy groups surveyed said that obstacles exist to the use of restitution. As shown in Table 76, the most common obstacle mentioned by these victim services providers and advocacy groups was the offender's inability to pay (34% and 32%, respectively). However, unlike Crown Attorneys or defence counsel (discussed above), victim services providers mentioned lack of awareness and knowledge of restitution as an important obstacle (31%). In interviews, victim services providers noted that if victims do not request restitution, Crown Attorneys and judges do not take the initiative and raise the possibility of restitution.
In addition, 16% of victim service providers surveyed believe that the process is too complex and costly for the victim. Both victim services providers (14%) and advocacy groups (21%) noted that the onus of collecting the payment is on the victims who must enter into civil proceedings to have the order enforced. One-tenth of victim services respondents indicated that the complexity of collecting payment from a restitution order results in many victims giving up or not even requesting restitution.
As well, about one-tenth of victim services providers surveyed believe that Crown Attorney or court reluctance creates an obstacle to the use of restitution. In interviews, a few reported that Crown Attorneys do not recommend restitution in cases of sexual assault,[34] and indicated the need to educate criminal justice professionals on restitution and the financial consequences to victims of all types of crimes. Table 76 lists the obstacles to restitution described by respondents.
| Obstacles: | Victim Services (n=94) | Advocacy Groups (n=19) |
|---|---|---|
| Accused usually poor or unable to pay | 34% | 32% |
| Victims lack information about restitution or unaware of option | 31% | -- |
| Victim must pay the cost of enforcement | 16% | -- |
| No enforcement | 14% | 21% |
| Cumbersome application process | 10% | -- |
| Judicial or Crown Attorney reluctance to order or request | 9% | -- |
| Eligibility criteria too restrictive | 7% | 11% |
| Does not compensate victim adequately | -- | 21% |
| Other | 11% | 26% |
Note: Respondents could provide more than one response; totals sum to more than 100%.
In interviews, when asked how to address the obstacles to requesting restitution, several victim services providers offered suggestions. Most commonly, they suggested measures such as garnishing offenders' wages or removing certain privileges as a means of enforcement. Several others suggested that victims should receive support from the criminal courts for enforcing the orders, and a few believe that restitution should not be used as a stand-alone order but that it should be part of a probation order that allows the criminal court to maintain jurisdiction over its enforcement.
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