Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada: Summary of Judiciary Respondents

3. Findings from Victim Services Providers and Victim Advocacy Group Respondents (continued)

3. Findings from Victim Services Providers and Victim Advocacy Group Respondents (continued)

3.6 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.

To determine views on when restitution should be requested, judges were asked when, in their view, restitution is appropriate. Surveyed judges responded that damages must be quantifiable (87%), and the offender must be able to pay (61%). They placed less emphasis on the victim's desire for restitution (32%).

3.7 Victim Surcharge

The victim surcharge is a penalty of 15% where a fine is imposed or a fixed amount of $50 or $100 for summary or indictable offences, respectively, and can be increased by the judge. It is imposed on the offender at sentencing and used by provincial and territorial governments to fund services for victims of crime. The 1999 amendments to the Criminal Code made the surcharge automatic in all cases except where the offender has requested a waiver and demonstrated that paying the surcharge would cause undue hardship.

Frequency of Waiver

While over half (58%) of judges surveyed reported that they generally apply the victim surcharge, over a third do not (37%). [3] When those who do not generally apply the surcharge were asked to explain, they reported that they do not apply the surcharge largely because the offender does not have the ability to pay (62%), although a few judges viewed the surcharge as inappropriate (6%) or questioned whether the funds are used to assist victims (5%). A third (31%) of judges reported varying from the minimum surcharge. Of those, a few (3%) reported that they raised the surcharge, however most of the variances were to waive or lower it.

3.8 Conditional Sentences

The Criminal Code permits judges to order that sentences of less than two years' imprisonment be served in the community instead of in jail. Conditional sentences may be imposed only when the court is convinced that the offender poses no threat to public safety. They are accompanied by restrictive conditions that govern the behaviour of the offender and strictly curtail his or her freedom.

Consideration of Victim Safety in Conditional Sentences

As Table 8 shows, the vast majority (94%) of judges surveyed usually grant conditions for the victim's safety in conditional sentences.

TABLE 8: USE OF CONDITIONS FOR VICTIM'S SAFETY IN CONDITIONAL SENTENCES
  Crown Attorneys (N=188) Defence Counsel (N=185) Judiciary (N=110)
Do you generally request conditions for the victim's safety? Do you generally agree to conditions for the victim's safety? Do you generally grant conditions for the victim's safety?
Yes 93% 94% 94%
No 1% 2% 4%
Don't know 2% 3% 2%
No response 4% 1% 1%

Note: Totals may not sum t 100% due to rounding.

3.9 Restorative Justice

In recent years, restorative justice approaches have become more widely used at all stages of criminal proceedings. Restorative justice considers the wrong done to the person as well as the wrong done to the community. Restorative justice programs involve the victim(s) or a representative, the offender(s), and community representatives. The offender is required to accept responsibility for the crime and take steps to repair the harm he or she has caused. In this way restorative approaches can restore peace and equilibrium within a community and can afford victims of crime greater opportunities to participate actively in decision-making. However, concerns have been raised about victim participation and voluntary consent, and support to victims in a restorative process. This study included several exploratory questions to discover the extent to which judges have participated in restorative justice approaches and their views on the appropriateness and effectiveness of these approaches.

Participation in Restorative Justice Approaches

One-quarter of judges indicated that they have participated in a restorative justice process.

TABLE 9: HAVE YOU EVER PARTICIPATED IN A RESTORATIVE JUSTICE APPROACH?

Table 10 below shows that the most common explanations for judges' lack of involvement in restorative justice is that restorative approaches are not available or not yet widely used in their province. Several judges pointed out in interviews that restorative justice tends to be used primarily in rural, northern, or remote Aboriginal communities. Twenty percent of judges explained that restorative justice had never been presented to them as an option by the Crown Attorney or by defence counsel.

TABLE 10: WHY HAVE YOU NOT USED OR PARTICIPATED IN A RESTORATIVE JUSTICE APPROACH?

In interviews, judges commented extensively on the use of restorative justice. Several suggested that the logistics involved in these approaches are a significant obstacle to their more frequent application. Restorative justice processes are more time-consuming than court processes and demand from community members a significant commitment of time and effort in order to succeed. It is often difficult to identify a group of individuals who are prepared to participate, particularly since these individuals are usually volunteers. In rural areas where participants may be required to travel considerable distances in order to attend restorative processes, the fact that they are not paid for their time or transportation is especially an issue. As a potential remedy to this situation, a few judges suggested promoting less elaborate restorative approaches (e.g., mediation as opposed to community conferencing or sentencing circles).

Cases where Restorative Justice would be most Effective

Judges were asked to comment in interviews on when they believe that restorative justice approaches would be most effective. They indicated that such processes would be particularly effective in cases involving young offenders, first offenders, and minor property offences. Generally speaking, judges indicated that restorative approaches should not be used for sexual assaults, child abuse, and other violent offences; however, several indicated that some minor assault cases could potentially qualify. Interviewees also suggested that restorative justice would be most effective where an offence affects an entire community or parts of it (e.g., disputes between neighbours or friends) and where the community takes a direct interest in the process and is prepared to participate. As an example, a few judges said that restorative approaches would be particularly effective in Aboriginal communities or other small, tightly knit communities. Several judges expressed a wish to see restorative justice approaches used more often and more effectively in the future, and some added that this will only be possible if resources are committed to creating the necessary infrastructure.

Protection of Victim Safety

Judges were asked in interviews about the importance of consulting the victim in the use of a restorative justice approach. Almost all respondents believe that such consultation is indeed important. There was widespread agreement that in order for restorative justice to adequately address victims' needs, victims should consent to and participate in the process, and that there is less chance of success if such consultation does not occur.

3.10 Impact of Criminal Code Provisions

Judges were asked what, in their opinion, has been accomplished by the Criminal Code provisions intended to benefit victims. While they did identify numerous outcomes that they believe have resulted from the Criminal Code provisions, about a quarter of judges did not answer this question. About one-quarter of judges (24%) said that the Criminal Code provisions intended to benefit victims have provided a more balanced criminal justice system. Judges also noted that the provisions have led to more uniform consideration of victims in the courts and to increased credibility of the system in the eyes of the public.

Judges also mentioned that the provisions have given victims a voice in the system. About one-quarter of judges cited this as an accomplishment of the Criminal Code provisions. Some judges also believe that victims are now more satisfied with the criminal justice system. In the survey, 16% of judges listed this as an impact of the Criminal Code provisions. In interviews, judges explained further that the provisions have increased victim confidence in the criminal justice system and made victims more willing to participate in it. In the survey, 12% of judges mentioned better protection of victims as accomplishments of the Criminal Code provisions.

The results discussed above are shown in Table 11.

TABLE 11: POSITIVE IMPACTS OF CRIMINAL CODE PROVISIONS TO BENEFIT VICTIMS

While these results show that many judges believe that the legislative changes have improved the experience of victims of crime in the criminal justice system, others cautioned that it is impossible to accommodate everything that victims want in an adversarial system. There was considerable concern among judges, as well as Crown Attorneys and defence counsel that the provisions have inadvertently created unrealistic expectations on the part of some victims about both the level of their involvement and how that involvement might affect any decisions made. These respondents worried that if expectations are not met, this could cause disappointment or resentment (16% of judges).

Only 2% of judges indicated concern over the effect of the provisions on the ability of Crown Attorneys to make independent legal decisions in their capacity as representatives of the state. Other concerns about the provisions come primarily from defence counsel. However, 6% of judges commented on the delays in the process caused by the provisions (e.g., the time required to consult with victims or the adjournments needed to inform victims of victim impact statements).

TABLE 12: NEGATIVE IMPACTS OF CRIMINAL CODE PROVISIONS TO BENEFIT VICTIMS

In summary, while all respondent groups included some comments on the limitations of the impact of the Criminal Code provisions, most reflections on the provisions revealed positive accomplishments. The two biggest accomplishments 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 the victims have opportunities to participate and have a voice in the system.

[3] The remaining 5% did not respond to the question.