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

5. Summary

5. Summary

5.1 Results from the Multi-site Survey of Criminal Justice Professionals

Role of the Victim and Responsibility of Criminal Justice Professionals

Criminal justice professionals included in this research generally agreed that victims of crime have a legitimate role to play in the criminal justice process. Although victim services providers and advocacy organizations were the most supportive of an active role for victims, other criminal justice professionals also believe that victims are entitled to be consulted, particularly before irrevocable steps are taken. In fact, survey results show that police, Crown Attorneys, and judges consider their main responsibilities to victims of crime to include keeping victims informed of the status of their case, providing them an opportunity to be heard, and taking their views into account at various stages of the criminal proceedings. Despite supporting consultation, however, criminal justice professionals also believe that victims do not fully understand the intricacies of the legal system and should not be the ultimate decision-makers.

Services for Victims

In the sites studied, victim services providers offer a wide range of assistance, from more immediate services such as crisis support to more long-term assistance such as informing victims about court processes and helping prepare victims to testify in court and beyond the court process. In addition to these services, other commonly provided types of assistance include giving referrals, providing information on the criminal justice system, informing victims about victim impact statements, and accompanying victims to court.

Victim services providers, police, and advocacy groups who were surveyed identified a number of challenges in providing accessible services. The most common challenge identified was accommodating victims whose first language is not English or French. A related concern is that victim services do not respond to cultural needs. Because different cultures react differently to being victimized, respondents identified a need for more culturally sensitive services and training for victim services workers. Respondents also considered financial issues, such as the need to pay for transportation and childcare, as limiting accessibility to victim services. Other challenges to accessibility were: lack of victim services in rural locations; the need for victim services to respond to the needs of both genders; and physical barriers for persons with disabilities.

In addition to these accessibility issues, victim services providers commented in interviews that they believe that there is a lack of awareness of available victim services. To address this, they suggested more publicity for victim services and more education of both the public and criminal justice professionals about the services available. For victims, who are often traumatized and overwhelmed after the crime, they suggest that the information on available services should come from a variety of methods (written and oral) and be provided at various points throughout the process. This need to better connect victims to available services also received attention from those involved in the post-sentencing phase. During this phase, victims do not usually receive information without first registering with the NPB or CSC. Survey respondents from these organizations identified a gap between victim services in sentencing and in corrections or parole, largely because victims are unaware of the post-sentencing services available.

Information for Victims

Victim services providers, advocacy groups, Crown Attorneys, and police who were surveyed generally agreed that victims usually receive adequate information about court dates, conditions of release, case outcomes, victim impact statements, and victim services. There was no consensus on the adequacy of information provided on various other aspects of the criminal justice process, ranging from the progress of the police investigation to the rights of the accused to alternative processes. Neither, for the most part, did these criminal justice professionals agree about who is responsible for providing information to victims. They tend to regard information provision as a shared duty rather than the sole responsibility of a single agency.

In interviews, victim services providers characterized the provision of information to victims of crime as sporadic, inconsistent, and often dependent on the nature of the offence or on the individual investigator or Crown Attorney assigned to the case. They also believe that victims are more likely to receive information from police or the Crown Attorney if they initiate contact themselves or if a victims services provider is involved. These shortcomings appear to be largely the result of the time and resource constraints that criminal justice professionals face. In interviews, Crown Attorneys, police, and victim services providers agreed that the sheer volume of cases in the system makes it impossible to provide all victims of crime with all of the information they may want or require.

Other perceived obstacles to information provision include lack of collaboration and coordination among agencies, privacy legislation and policies that restrict information sharing, and, in some cases, victim transiency and reluctance to be contacted. Suggestions for improving the information given to victims included more widespread establishment of court-based or police-based victim assistance programs; better provision of information by police and the Crown Attorney and/or more police and Crown Attorney resources; stronger links among agencies; and development of clear guidelines on agencies' respective responsibilities for information provision.

Victim Safety at Bail Determinations

The criminal justice professionals surveyed in this research appear to regard victim safety as an important consideration in bail determinations. Police use a variety of methods to ensure that victims' safety concerns are considered at bail; most commonly, they prepare a written submission to the Crown Attorney that includes recommendations for specific bail conditions following the investigation. Although Crown Attorneys seldom call the victim as a witness in bail hearings, virtually all generally request specific conditions to address the victim's safety at bail. Almost all defence counsel usually agree to requests for specific conditions, provided that these requests are reasonable, and almost all judges generally impose conditions for the victim's safety. Furthermore, more than three-quarters of judges said that they ask about safety issues if the Crown Attorney has not mentioned them; but, in interviews, judges noted that this is rarely necessary because the Crown Attorney is very diligent about bringing these issues to the attention of the court. Nevertheless, about one-third of victim services providers and advocacy organizations surveyed believe that the victim's safety is generally considered at bail determinations.

Provisions to Facilitate Testimony

Publication Bans and Exclusion of the Public

Publication bans in non-sexual offences and exclusion of the public from a trial are used only in the most exceptional circumstances. Fewer than half of judges reported having ever granted a publication ban in non-sexual offences and having ever granted the exclusion of the public. Crown Attorneys, judges, and defence counsel agreed that an open court is essential to maintaining public confidence in the criminal justice system. Although very few victim services providers and advocacy organizations could speak on the subject of these protections, those who offered a response believe that judges are hesitant to grant these requests, and several suggested that the protections should be more widely used.

Testimonial Aids

Of the three testimonial aids designed to assist young witnesses or those with a mental or physical disability, screens appear to be the most popular among Crown Attorneys, defence counsel, and judges. About 60% of Crown Attorneys surveyed reported generally requesting the use of a screen in these cases, and a similar proportion of defence counsel generally agree to its use. More than 80% of judges generally grant the use of screens. The minority of survey respondents who perceive obstacles to the use of screens mentioned judicial reluctance to grant their use, the requirement that applications meet a stringent legal test in order to be used, logistical obstacles such as a lack of the necessary equipment at small sites, and the ineffectiveness of screens at facilitating testimony.

Closed-circuit television is the least likely of the three aids to be requested by Crown Attorneys; fewer than 40% generally request it in appropriate cases, although over 40% of defence counsel generally agree to its use. Among judges, over 60% reported that they usually grant these requests. The main obstacle to the use of closed-circuit television is a lack of necessary technology and properly equipped courtroom facilities, particularly at small and medium-sized sites.

Just over half of Crown Attorneys request videotaped testimony in appropriate cases, but less than one-quarter of defence counsel agree to it. They object primarily on the grounds that it interferes with effective cross-examination. Crown Attorneys, for their part, also perceive difficulties with videotaped testimony, including poor quality interviews and the fact that it does not relieve witnesses of the need to adopt their testimony on the stand and be cross-examined by defence counsel. Judges were just as likely to grant the use of video taped testimony as closed-circuit television.

Overall, Crown Attorney requests for these testimonial aids are quite common in eligible cases, provided that the necessary technology is available. However, many Crown Attorneys explained that they do not request the aids unless there is a compelling reason to do so, and many reported having as much success without using the aids as with them due to careful preparation of witnesses before trial. Judges likewise displayed considerable willingness to grant the use of testimonial aids in eligible cases, but also emphasized the need for the Crown Attorney to present compelling evidence that the aids are truly necessary. Defence counsel, for their part, expressed serious reservations about the use of testimonial aids on the grounds that these aids violate fundamental principles of the criminal justice system intended to protect the accused. Victim services providers and advocacy organizations had relatively little to say on the subject of testimonial aids, but those who offered a response believe that victims are not sufficiently aware and informed of these protections, and that they should be used more often and afforded to victims beyond the statutory age and disability parameters.

Support Persons

Of the various provisions to facilitate testimony, the use of support persons to accompany a young witness or a witness with a mental or physical disability appears to be the least controversial and the most widely used. More than three-quarters of Crown Attorneys generally request that a support person accompany such witnesses, and two-thirds of defence counsel generally agree to these requests. Over 80% of judges typically grant these requests. However, both Crown Attorneys and defence counsel remarked upon the need to select a neutral individual who is not too close to the victim and who does not have a vested interest in the outcome of the case. Very few respondents in any category perceive obstacles to the use of support persons.

Section 486 (2.3)

A relatively small proportion of survey respondents (just over one-quarter of Crown Attorneys and one-fifth of judges) has been involved in cases where Criminal Code section 486 (2.3) applied. Of these respondents, a large majority of Crown Attorneys reported that they would request that counsel be appointed in these cases, and a large proportion of judges reported that they would appoint counsel respectively for the purpose of cross-examination. Seven judges surveyed have allowed the accused to cross-examine a young victim since section 486 (2.3) was adopted.

There was considerable support for expanding section 486 (2.3) to other offences and/or other witnesses. Three-quarters of victim services providers and advocacy groups favoured expansion, compared to half of Crown Attorneys and one-quarter of defence counsel. Across all respondent groups, support was most widespread for expanding the section to adult witnesses in the category of offences to which it currently applies.

Victim Impact Statements

Criminal justice professionals believe that victim impact statements are usually submitted only in serious cases; however, victim services providers and advocacy groups believe that victim impact statements are submitted in most cases. This different perception may be because victim services providers and advocacy groups tend to be involved in the more serious cases. There is agreement among all respondent categories that victims usually submit a written statement, but that few victims choose to read their statement aloud in court.

A related issue is providing information to victims about the impact statements. If awareness of the statements is low, submission rates will be correspondingly low. In interviews, Crown Attorneys, defence counsel, and victim services all questioned whether criminal justice professionals are completely fulfilling their roles concerning victim impact statements. Issues raised were whether police routinely inform victims about impact statements and whether Crown Attorneys diligently pursue obtaining them or submit the statements they do receive. About one-quarter of Crown Attorneys surveyed said that they usually contact the victim to see whether he or she wants to provide an impact statement in cases where none has been submitted.

While most victim services respondents believe that victims are made aware of impact statements, one-fifth think they are not. In interviews, victim services providers suggested that victims receive some form of mandatory or consistent notification; that all agencies and criminal justice professionals provide the information at various stages of the process; and that follow-up with victims is done.

Less than two-thirds of victim services providers surveyed reported that they assist victims with victim impact statements at sentencing. Most provide basic assistance, such as helping victims obtain forms, explaining how to complete the impact statement, and telling victims where to send their completed statements. In terms of assisting with the actual writing of the statement, victim service providers are more likely to write down the information provided by the victim or review the statement, than they are to actually assist the victim with formulating his or her thoughts. Half of victim services providers who assist with impact statements collect and submit the completed statements.

From this latter finding, it appears that many victims submit their own impact statements to the Crown Attorney and/or court. The interviews support this, as some jurisdictions do not collect and submit victim impact statements. In these jurisdictions, unless the victims seek assistance from victim services providers, they do not receive much advice on when to submit the statement. This is important because both Crown Attorney and victim services providers raised the issue of the timing of submission and how it can create difficulties for victims. If victims are submitting their statements themselves, they may be unaware of the potential downsides, such as cross-examination on their victim impact statement. One-quarter of Crown Attorneys, one-fifth of defence counsel, and one-tenth of judges had been involved in a case where the victim was cross-examined on their victim impact statement. In interviews, Crown Attorneys and defence counsel considered it rare for a victim to be cross-examined on his or her impact statement because the Crown Attorney and defence counsel usually agree to excise any prejudicial or otherwise inadmissible material before the impact statement is submitted to the court.

This issue of the timing of the submission of victim impact statements raised several concerns for Crown Attorneys and victim services providers, which led to conflicting views on when to submit an impact statement. The major concerns are: the need to receive the statement early enough to ensure it is considered during plea negotiations versus the requirement of disclosing the victim impact statement to the defence counsel and risking cross-examination of the victim on the statement during trial. Half of Crown Attorneys surveyed and several victim services providers in their interviews stressed the need to submit the statement early in the process in case a sudden guilty plea occurs; the statement can then assist the Crown Attorney in negotiations and can be used at sentencing. However, others (including 44% of Crown Attorneys surveyed) believe that the risk of cross-examination means that victim impact statements should only be submitted after a finding of guilt; in addition, waiting until later in the process allows the victim to prepare a more complete statement.

Judges reported somewhat uneven compliance with the 1999 amendments to the Criminal Code. Under these amendments, judges have certain responsibilities for how to handle victim impact statements: they must inquire before sentencing whether the victim has been advised of the opportunity to prepare a victim impact statement; and they must consider impact statements at sentencing. Judges were divided about whether they regularly inquire about victim notification; about half reported that they always or usually enquire, and the other half said that they only sometimes, rarely, or never do. Over four-fifths of judges reported that they use victim impact statements in determining the sentence. The same proportion of Crown Attorneys reported that they remind judges to consider victim impact statements in cases where they are submitted. According to the judges, they consider victim impact statements as they do other relevant information and use them to help determine the length of sentence and the severity of the offence. However, judges also noted in interviews that the use of victim impact statements is carefully circumscribed; while victim impact statements can provide relevant information, they do not and cannot influence sentencing to the extent that they express a desire for outcomes that differ from those defined by the Criminal Code. Crown Attorneys agreed with this perspective, commenting in interviews that while judges consider victim impact statements, they still must impose sentences that are consistent with the Criminal Code and case law. About half of judges who were surveyed reported disallowing parts of victim impact statements, usually for containing irrelevant or inappropriate information.

The different categories of criminal justice professionals had very different survey responses to whether there are obstacles or problems with victim impact statements. Four-fifths of defence counsel and half of Crown Attorneys reported obstacles or problems compared to one-third of victim services providers and one-fifth of police. For Crown Attorneys and defence counsel, the biggest obstacle or problem is the inclusion of inappropriate or irrelevant material in the victim impact statements, such as reciting the facts of the case, referring to the offender's alleged involvement in other criminal activities, or offering their views on sentencing.

A related issue to the inclusion of irrelevant information is the possible objection to the statement, or the cross-examination of the victim on their impact statement. About one-fifth of Crown Attorneys, victim services providers, and police respondents mentioned this as an obstacle to the submission of victim impact statements. In interviews, several Crown Attorneys said that the victim impact statement can be detrimental to the Crown Attorney's case; it can make the victim more vulnerable and strengthen the defence. Victim service providers who were interviewed expressed the concern that some victims do not prepare statements because they fear being questioned on its content. However, in looking at all victim service respondents' responses (i.e., both self-completed questionnaires and in person interviews), victim services providers have found the biggest obstacle to occur in the preparation of the statement because of a lack of guidance and information (32% listed this as an obstacle). Another third of victim services providers listed literacy or language as a major barrier.

In interviews, victim services providers commented on the benefits of victim impact statements. The most cited benefit was that these statements allow victims to express themselves and make the judge and offender aware of the crime's effect on them. Other benefits cited were: providing the victims with a sense of closure and serving a therapeutic purpose; and empowering victims and letting them feel that they are regaining some control. Victim services providers consider the decision to read the statement as very personal, but one that could serve to enhance the benefits listed above.

At parole, the victim can rely on the victim impact statement from sentencing and/or provide another statement to the parole board. According to parole survey respondents, victim impact statements used at sentencing are not always provided to the parole board. If they are provided, they are usually provided by the victim, followed by the court; the Crown Attorney; and CSC. About 10% or less of victim services respondents who assist victims with impact statements reported assisting victims with statements for use at parole board hearings. Victim services respondents indicated that victims usually submit a written statement to the parole board. Parole survey respondents indicated that the parole board considers all forms of victim statements provided - those from trial; formal victim statements submitted directly to the parole board; and other new or additional information that the victim might provide. NPB respondents reported that the Parole Board uses this information in a variety of ways, including in making risk assessments, in determining conditions, and in assessing the offender's progress. Most provincial parole board respondents simply stated that victim information is just one factor the parole board considers.

Restitution

According to two-thirds of Crown Attorneys and four-fifths of defence counsel surveyed, when requests for restitution are reasonable, restitution is usually ordered. According to judges who were surveyed, the key factors are the ability to quantify the losses and the offender's ability to pay. In cases where restitution is appropriate, nine-tenths of Crown Attorneys surveyed reported that they usually request restitution; similarly, three-quarters of defence counsel surveyed said that they usually agree to reasonable restitution requests. The difficulties come with enforcing restitution orders. Half of Crown Attorneys and two-thirds of probation officers regard restitution enforcement as difficult, as do one-third of defence counsel. According to all three groups, the inability of the accused to pay is the most common obstacle to enforcement. Enforcement is often not pursued because it requires a large expenditure of money to collect relatively small amounts of money. In addition, enforcement of each form of restitution, as a condition of probation or as a stand-alone order, presents unique challenges that can leave the impression of few consequences for failure to comply. Because the Crown Attorney must prove a wilful breach of a probation order, Crown Attorneys rarely bring charges in these cases, and even if they do, the typical result is a fine that is less than the restitution order itself. For stand-alone restitution orders, all three groups noted that enforcement requires the victim to engage in a difficult legal process and bear all the costs of enforcement, which is not a realistic option for many victims of crime.

Victim services and advocacy group respondents also perceive obstacles to the use of restitution. In accordance with the primary reason for enforcement difficulties given by Crown Attorney and defence counsel, the most common obstacle mentioned was the offender's inability to pay. However, unlike these other groups, victim services and advocacy group respondents believe that restitution is under-used due to victims' lack of awareness and knowledge of restitution. If victims do not request restitution, Crown Attorneys and judges do not take the initiative and raise the issue on their own. In addition, the process for enforcing stand-alone restitution orders is too complex and costly for victims.

Victim Surcharge

Under the Criminal Code, the victim surcharge is automatic in all cases except where the offender has requested a waiver and demonstrated that paying the surcharge would cause undue hardship. Almost 60% of judges surveyed reported that they generally apply the surcharge and the third who do not give the offender's inability to pay as the reason. A few judges said that they considered the surcharge to be inappropriate or questioned whether the funds are used to assist victims. Other criminal justice professionals surveyed disagreed about whether the surcharge is waived appropriately. Almost nine-tenths of defence counsel believe that it is, while over two-thirds of Crown Attorneys and victim services believe that it is not. In interviews, those who believe that the waivers are appropriate see them as occurring when the offender is impecunious or incarcerated and unable to pay. They also reported that waivers only occur after an explicit defence counsel request or after the judge has already received information about the offender's financial situation and other relevant personal circumstances. On the other hand, those who believe that the surcharge is waived too often attribute the frequent waiver to judicial attitudes; the surcharge is not seen as an integral part of the justice system. They also noted that judges often waive the surcharge without an explicit request. When requests are made to waive the surcharge, few Crown Attorneys usually challenge these applications because they rarely have any information or proof to contest the reasons presented by the defence counsel as grounds for the waiver.

Conditional Sentences

There is widespread agreement across all respondent groups surveyed that conditional sentences are appropriate in non-violent offences, but there is less support for their imposition in offences against the person, on the grounds that these offenders do not meet the basic criterion of posing no threat to the public. Defence counsel are more likely than other respondents to think that conditional sentences are appropriate.

Survey results show that conditions for the victim's safety are almost always requested by Crown Attorneys, agreed to by defence counsel, and granted by judges when conditional sentences are imposed. Nevertheless, about one-quarter of victim services providers and advocacy groups disagreed. In interviews, many victim services providers as well as some Crown Attorneys noted a lack of resources for supervision and enforcement of conditional sentences, with the consequence that offenders are not being adequately punished for breaches. They also suggested that the conditions imposed on offenders serving conditional sentences are too lenient and do not sufficiently restrict their liberty.

Restorative Justice

Of the various categories of criminal justice professional surveyed, defence counsel were most likely to have participated in a restorative justice approach (58%), followed by Crown Attorneys (43%). Other criminal justice professionals reported less involvement. For example, about one-sixth of police and one-tenth of victim services providers had participated in a restorative justice process. Among those who had not participated, the two most common explanations overall were that restorative approaches are not available or not yet widely used in their province; and that restorative justice had never arisen as an option or that they had never had a case suitable for restorative justice.

Respondents generally agreed that it is important to consult the victim in the decision to use a restorative justice approach, although it was also noted that the decision whether to proceed is not the victim's alone to make since some cases can affect entire communities. Restorative Justice, thus in principle, requires voluntary agreement of the victim, the accused and the community.[40] Survey respondents believe that restorative justice would be most effective in cases involving young offenders, first offenders, and minor property offences; in cases where the whole community is affected; and in cases where the victim consents to the process and the offender is motivated to participate. Respondents disagreed, however, on the appropriateness of restorative approaches in violent offences, citing doubts about their ability to adequately protect victims' safety.

Victim Participation at Parole

Across all categories of parole respondents a small number mentioned that victims participate in the parole process. This would include requesting information, providing information, presenting a victim statement, or attending parole board hearings. This was true regardless of the seriousness of the case. Complementing these results, about three-quarters of parole respondents (NPB, provincial, and CSC) believe that there are obstacles to victim participation in the parole or correctional process. The main barriers cited by federal respondents are lack of funding to assist victims who want to attend hearings, lack of victim awareness of available support services, and obstacles in finding how victims can participate. Provincial parole board respondents consider the lack of victim awareness as the primary obstacle.

Impact of the Criminal Code Provisions

Respondents identified numerous outcomes that they believe have resulted from the Criminal Code provisions. While all respondent groups included some comments on the limitations of the impact of the provisions, a larger proportion focused on positive accomplishments. The accomplishments receiving the most mentions from survey respondents are the creation of a more balanced criminal justice system through increased awareness of the concerns and interests of victims and the provision of more formal mechanisms to ensure that victims have opportunities to participate and have a voice in the system. In interviews, respondents discussed these accomplishments further. Crown Attorneys and victim services providers believe that the increased profile of the victim has led to enhanced services and a system that responds better to victim needs. Judges commented that the provisions have led to a more uniform consideration of victims in the courts and increased respect for the system by the general public. In the survey, judges, Crown Attorneys, and victim services providers also expressed the view that victims are now more satisfied with the criminal justice system. They believe that the provisions have increased victim confidence in the system and willingness to participate; however, about an equal number of judges and defence counsel expressed concern that the provisions have increased victims' expectations about their role in the system and how their input might affect outcomes. These respondents worried that if these expectations are not met, victims will be disillusioned. A sizeable minority (one-quarter to one-tenth) of respondents believe that the provisions have accomplished little or nothing.


[40] Restorative justice in principle does require voluntary agreement of the victim, the accused and the community.