Part I: Introductory Remarks – From Theory to Practice

The Growth of Victims’ Rights

Starting in the 1970s, crime victims began a transformation from being mere “evidentiary cannon fodder” (Cavadino & Dignan 1996:155) for the prosecutor to active participants demanding that their voices and views be considered by criminal justice professionals. The 1970s was a decade of significant reform with respect to compensation for injury from crime and the 1980s was a decade of the institutionalization of victim participation in the process through the creation of rights and entitlements for victims. The 1990s was a decade of taking stock of the rapid changes in the status of the crime victim.

The historical and political context in which this transformation begun may have changed in the past two decades, but the interest of academics and government officials has not waned. As for the origin of the victims’ rights movement, it must be recognized that from the 1960s to 1991, the rate of violent crime in Canada increased dramatically by nearly 400% (Easton, Furness & Brantingham 2014; Statistics Canada 1992), and many political actors began to champion a war on crime and an espoused commitment to address the plight of crime victims. It may be that the victims’ rights movement was partly spawned by political exploitation of fear, but it also had to be recognized that independently of any political objectives, crime victims (and the general public) consistently expressed a lack of confidence in the administration of justice. In addition, social scientists began to document the phenomena of “secondary victimization,” in which victims of crime experienced greater trauma and anxiety as a result of their interaction with the criminal justice system.

Since the 1990s, there has been a flattening and reduction in the incidence of violent crime but interest in fostering reform to address the plight of the victim has not subsided. Crime rates may have decreased over the long term, but public opinion polls still consistently demonstrate a low level of confidence in the administration of justice (Angus Reid Institute 2020; Ekos Research Associates Inc. 2017; 2019; Department of Justice Canada 2019b; Cotter 2015). A 2020 Angus Reid poll shows that only 36% of Canadians have confidence in the courts, which is down from 41% in 2018 and 44% in 2016 (Angus Reid Institute 2020). Other polls may show higher levels of confidence among the general population (Department of Justice Canada 2019b), but among crime victims there is a consistent expression of a lack of confidence in the ability of the system to assist the victim (Lindsay 2014a; 2014b; Department of Justice Canada 2017; 2019a; Office of the Federal Ombudsman for Victims of Crime 2017e). As the Federal Ombudsman for Victims of Crime said in 2017: “victims don’t trust our criminal justice system” (2017e:5). Similarly, a 2019 Department of Justice report noted that “despite some advancements in victims’ rights, many victims continue to lack confidence in the system” (2019a:5). The lack of confidence expressed by crime victims in the criminal justice system’s ability to assist them is also reflected in current opinion polls, which show that “almost twice as many Canadians express high confidence in the system’s ability to respect the rights of accused as compared to helping victims of crime” (Department of Justice Canada 2009:26).

In addition, many commentators and observers still believe that the criminal justice process is a breeding ground for secondary victimization. It has been said that “if one set out intentionally to design a system for provoking symptoms of posttraumatic stress disorder, it might look very much like a court of law” (Herman 2003:159). In 2006, Wemmers and Cyr expressed the common refrain that “victims often report a sense of secondary victimization or the second wound which refers to the enhanced suffering resulting from insensitive reactions of others, particularly the criminal justice system” (2006b:103). In 2017, the Federal Ombudsman for Victims of Crime similarly noted that “interactions with Canada’s criminal justice system are often leading to…re-victimization…and…harmful experiences within that system have irrevocably altered their lives and notions of justice and community” (2017e:5).

Lack of confidence in the system, and the system’s capacity to revictimize the victim, may be fueling the continued academic and governmental interest in debating further law reform in aid of victims, but it is important to also acknowledge that another reason why victims’ rights are a work in progress is the fact that there remains an unresolved philosophical or theoretical debate about the proper role of the victim in an institutionalized justice system monopolized by the state. Despite the historical ascendency of the victim (as discussed in the 2001 report), our system of public prosecution by state agents has a well-established historical pedigree of over 200 years. The system was built on the notion of excluding lay participation (except for a jury) and when victims started to demand recognition in the 1960s, they were seen as “barbarians at the gate” (Cassell 1999). This started a prolific and sustained academic debate into the philosophical justifications for a renewed integration of the victim into the criminal justice process.

From Theory to Practice

In the 2001 report, a great deal of time was spent outlining the struggles to find a sound theoretical underpinning for the reintegration of the victim into the modern process. The report discussed the efforts of theorists to fit victims’ rights into a process designed to achieve retributive, denunciatory and deterrent effects. The academic enterprise of struggling to provide a proper penological foundation for victims’ rights spawned a large body of literature which has reformulated the nomenclature and philosophical underpinnings of a retributive theory of justice (Cavadino & Dignan 1996; Sebba 1996). Whether it is called “reconciliation” (Marshall 1985; Umbreit 1985; Galaway & Hudson 1990), “reparative justice” (Dignan 1992), “relational justice” (Burnside 1994) or “restorative justice” (Cragg 1992; Zehr 1990), the focus has been on emphasizing the “restoring the balance” function of retributive justice as a principled basis for re-integration of the victim.

The predominant theme and focus in the current literature still remains philosophical or theoretical. As Susan McDonald has recently noted: “there is less academic research in evaluating programs and reviewing legislative reform with an empirical (versus a theoretical) lens” (2020b:4). Commentators continue to try building upon Herbert Packer’s seminal 1968 textbook, “Two Models of the Criminal Process,” by reformulating Packer’s models, or constructing new theoretical models which could welcome and accommodate lay intrusion (Beloof 2007; Hughes & Mossman 2001; Wilson 2005; Jain 2019; Cassell 2009; Sorochinsky 2009; Edwards 2003). Canadian scholars have contributed to this enterprise starting with Professor Roach’s (1999) Punitive and Non-Punitive Victims’ Rights Models and most recently with Professor Manikis’ (2019a) Penal Parsimony Model. The fact that the theoretical debate has not been resolved may provide some explanation for the continuing reluctance to fully embrace victims’ rights by jurists who are tasked with interpreting and enforcing the law.

In the past two decades, it is unlikely to find many legal professionals and jurists repeat the condemnatory tone found in the comments of the pre-eminent criminal lawyer, Eddie Greenspan, who said that “gradually the novel notion of victims’ rights has poisoned the well of traditional criminal law values” (2001:90); however, we do find jurists repeating the oft-quoted words of the B.C. Court of Appeal, who said in 1992 that we must understand the “the reality that the criminal justice system was never designed or intended to heal the suffering of the victims of crime.” (R. v. Sweeney 1992:95). For example, in 2012, the B.C. Provincial Court noted that “the sentencing process is fundamentally incapable of dealing with the legitimate needs of victims and their survivors” (R. v. Smith 2012:8), and in 2013 the B.C. Court of Appeal pointed out that “it must be remembered that a criminal trial, including the sentencing phase, is not a tripartite proceeding. A convicted offender has committed a crime - an act against society as a whole. It is the public interest, not a private interest, which is to be served in sentencing” (R. v. Berner 2013:16; citing R. v. Bremner 2000:26 and R. v. Gabriel 1999:22). The current and conventional understanding of jurists does not readily accept that there is a theoretical justification for increased victim involvement in the process.

Resolution of theoretical debates is not a purely academic exercise. Consistency and clarity in practice can best be achieved when everyone is operating within the same theoretical framework. An example of how unresolved theory can lead to practical inconsistencies can be found in the area of victim compensation. As will be noted later on, there has been strong criticism expressed about the efficiency and efficacy of provincial compensation schemes which have existed since the late 1960s. Perhaps the shortcomings of these programs can be attributed to the fact that from the outset, there was a lack of consensus about the theoretical justification for the state to pay money for injuries inflicted by third parties.

Three models were advanced to justify state compensation. First, there was the argument that the state had a legal or moral duty to protect its residents and this triggered a moral duty to compensate for loss. Second, there was the “social welfare” justification - compensation as a natural extension of the developing welfare state, similar to the objectives underlying worker’s compensation, i.e. to distribute the risks of employment to some larger institution, which could much more easily bear the costs of injury. The third justification for these programs was entirely different in that it engaged a utilitarian approach to the issue by arguing that the state would benefit from awarding compensation because such compensation would encourage victims to report crime and co-operate with law enforcement officials.

It would not be very important to articulate a coherent and consistent philosophical foundation for state compensation if theory did not impact upon practice. However, as Professor Burns strongly asserts, different philosophical orientations lead to different implementation strategies:

...the purpose of a scheme must be determined before that scheme can be properly administered. Ambiguous portions of an Act can best be construed and applied if the rationale of the Act is known. Again, the purposes of a scheme must be determined before the scheme itself can be evaluated. If its object is merely to placate the public, for example, then its success can be measured by how effectively it has silenced critics of the criminal justice system. The number of persons who seek compensation and the eventual fate of their claims are both irrelevant in evaluating such a scheme. Yet clearly both of these are significant in evaluating a scheme whose purpose is to alleviate to some extent the suffering caused by violent crimes. The statutory scheme’s purpose must be ascertained before it can be interpreted as an event in social or legislative history. If it reflects an extension of our concept of the obligations of the state, it must be interpreted in the light of increasing court-imposed duties on governmental bodies. If it reflects an expanded concept of the duties of the welfare state it must be interpreted in a different light. The way in which we construe the scheme’s role in social history will suggest different extensions in the future (Burns 1992:94-5).

Striking a Balance – Three Difficult Cases

A coherent theoretical or philosophical foundation would assist justice officials with the more practical and real problem of striking a proper balance between the interests of the victim, the interests of the accused, the interests of the community and the interests of the state. Striking a proper balance is a difficult task and reasonable people will often disagree. Three high-profile cases from three jurisdictions demonstrate the practical difficulties in striking a proper balance which prioritizes the interests of victims. In New Zealand, a trial court imposed a “restorative sanction” which would have given the victim of a violent robbery $15,000 for plastic surgery to repair an embarrassing scar. The victim indicated to the court that imprisonment would have no value and the accused agreed to pay for the surgery. The case was then overturned by the New Zealand Court of Appeal, which imposed a three year term of imprisonment, stating that: “[W]e would not want this judgment to be seen as expressing any general opposition to the concept of restorative justice...Those policies must, however, be balanced against other sentencing policies… dealing with cases of serious violence. Which aspect should predominate will depend on an assessment of where the balance should lie in the individual case” (R. v. Clotworthy 1998:661).

This decision generated a fair degree of commentary and criticism (Manikis 2019a; Roach 2005; Bowen & Thompson 1999) and it was suggested that the Court “succeeded in relegating the victim back to the periphery of the criminal justice system where victims have been since the implementation of the Westernised Criminal Justice System into New Zealand” (Bowen & Thompson 1999).

Seven years later, a trial court in Toronto adopted a similar restorative approach to sentencing for a high-profile drive-by shooting which left a woman in a restaurant paralyzed. In addition to a term of incarceration, the trial judge ordered that $2 million be paid in restitution to the victim. On the one hand, this approach was seen as a “red-letter day for victims” as “a lighter sentence was a worthwhile trade-off for significant restitution for a victim of a horrible crime” (Edwards & Rankin 2011). On the other hand, the spectre of wealthy people being given a reduction in prison time in exchange for trying to make the victim whole was seen by some as the use of “dirty money” to set a “horrible, horrible precedent” (ibid).

Finally, in 2018, when Larry Nassar was to be sentenced in the United States for two decades of sexual abuse against professional gymnasts, the sentencing judge went to great lengths to give a multitude of victims a voice at sentencing. More than 150 victims spoke before sentence was pronounced in this case, which was being followed carefully in the public eye. While some praised the judge for taking the time to ensure that all of the victims were heard and for supporting the victims throughout the sentencing process, others claimed that this type of spectacle does not aid the judge in arriving at a fit sentence and that the judge had “abandoned the proper role of neutral arbiter, took sides, and inappropriately broadcast[ed] her views” (Green & Roiphe 2019a:383).

Without a consensus on the philosophical foundation for victims’ rights, it is not surprising that judges have difficulties in striking a proper balance and integrating the victim in a manner that does not raise condemnation or criticism. However, in completing the 2001 report, it became clear that a murky philosophical foundation was of much less significance in thwarting the development of victims’ rights than the practical resistance to change shown by legal professionals.

Professional Neutralization

Many commentators have asserted that victims have not been integrated into criminal justice processes because of institutional resistance. That is, legal professionals often engage in a form of “professional neutralization” (Davis, Kunreuther & Connick 1984; Erez & Tontodonato 1992; Erez 1994; Kury, Kaiser & Teske 1994; Erez & Roeger 1999; Erez & Laster 1999) to prevent full implementation of victims’ rights. Given that “criminal justice professionals have little incentive to act in accordance with the wishes and needs of victims, since they are not directly accountable to them, either legally or organizationally” (Garakwe 1994:599-600), this observation is not entirely surprising.

Professional neutralization was not borne out of malice or disdain for victims. Rather, “officials fail to honor victims’ rights largely as a result of inertia, past learning, insensitivity to the unfamiliar needs of victims, lack of training, and inadequate and misdirected institutional incentives (Mosteller 1999:449). Since the 2001 report, the academic literature has not further explored this issue in any serious or systematic way; however, there is some literature in Canada which still identifies the views and practices of legal professionals as a major obstacle to the development of victims’ rights. For instance, Professor Wemmers noted in 2005 that “the biggest obstacle to change is the attitude held by many legal professionals working throughout the criminal justice system that victims do not belong” (2005a:27). Similarly, as noted by a participant during the Federal Ombudsman for Victims of Crime’s engagement process in 2017, “it’s about an attitude shift and making a commitment. This requires the state to take responsibility for meaningfully supporting victims” (2017e:5). Despite such findings, however, Professor Roberts nevertheless claimed in 2008 that the research demonstrated a “much greater professional acceptance of the role of the victim now” than ever before (2008b:48).

There may not have been any systematic revisiting of the effect and impact of professional neutralization in the past two decades, but some of the empirical evidence in evaluative studies implicitly support the claim that professional resistance still remains a problem. For example:

Legal Culture

Since the inception of the victims’ rights movement, there has been a robust debate as to whether the entitlements and rights of victims should be elevated and enshrined into a set of constitutional rights. One advocate and supporter of the drive to constitutionalize these rights changed his perspective on this issue, and, in 2005, concluded that any constitutional amendment would be a hollow victory without a change in the legal culture of resistance and neutralization. He wrote:

In my view it is necessary to develop a new legal culture prior to turning to the amendment process, instead of hoping that the amendment will spawn an amendment-friendly culture. In our current legal culture crime victims are largely ignored. There are few lawyers and advocates available to assist victims, even though legal assistance would be indispensable for a victim wishing to seek greater participation in a highly-professionalized This is not surprising considering that legal education rarely includes any courses or programs on victims’ rights….Legal representation of crime victims in Canada is a rare event…This is disturbing considering that the right to counsel for the accused is considered indispensable for his/her participation in the process. Accordingly, the proper training and education of legal professionals is a necessary first step in developing a legal culture in which a VRA could flourish (Young 2005:469).

In 2002, a similar sentiment from the American perspective was expressed by one of the authors of the first victims’ rights law school casebook in North America:

As we look to the future of crime victims’ rights in America, there is no doubt that crime victim attorneys are in a unique position. These attorneys hold the keys to opening the doors of justice for many crime victims. Based upon the prevalence of victims’ rights violations, it is apparent that attorneys have many opportunities to ensure the compliance and enforcement of victims’ rights. Attorneys can set precedent simply by taking these laws off the shelves and breathing life into them through legal advocacy. By engaging in this work, attorneys will join in the noble tradition of devoting their skills and time in the defence of civil liberties (Gillis & Beloof 2002:703).

Since the completion of the 2001 report, there has been some increase in entitlements to counsel, as will be discussed; however, the question remains whether the legal culture has changed sufficiently for legal professionals to embrace victims’ rights. One crude indicator of a shift in culture since 2001 would be the presence of post-secondary educational programs for lawyers and other service providers. In 2004, Steve Sullivan (former Federal Ombudsman for Victims of Crime) and Professor Alan Young were retained by the Department of Justice to complete a casebook on victims’ rights for Canadian law schools. In 2010, this casebook, with some modifications, became the course materials for a victims’ rights course at Algonquin College in Ottawa, and since then, the course and casebook has become part of the curriculum at Lambton College, St. Lawrence College and Sault College. The course is described as follows:

Being a victim of crime thrusts a person into a number of legal systems. Students critically examine legal systems from a victims' perspective. Particular focus is placed on the criminal and family law systems and how they intersect. Relevant legislation, as well as recommendations from inquests and inquiries are examined. Restorative justice and victims' rights are explored through discussions and case studies (Algonquin College 2020).

Despite the interest in community colleges, there has been little interest shown in law schools for introducing law students to the tools and skills needed for victim advocacy. Since 2001, there has finally been two textbooks published in Canada relating to victims’ rights and the law (Barrett 2001; Perrin 2017), but there is no published casebook on this topic, nor are there any regularly offered victims’ rights courses as part of the curriculum at any Canadian law schools. In contrast, dozens of American law schools offer these courses and many American universities offer a Victim Advocacy Certificate program to train students in the delivery of victim services. In addition, American law schools continue to host educational symposiums and dedicate volumes of their law journals to these conferences (McGeorge School of Law 2019; Lewis & Clark Law School 2020; Cassell 2015 [Ohio State Journal of Criminal Law]).

A shift in culture may not be indicated by the current practices of law schools and the legal profession, but since 2000, state actors have devoted a great deal of time to the mission of educating the public about the scope and availability of victim entitlements. The Government of Canada’s Victims of Crime Initiative set up the Policy Centre for Victim Issues in 2000, whose mandate now includes the implementation of the Federal Victim Strategy. The Research and Statistics Division of the Department of Justice published an issue of its annual journal, JustResearch, in 2007 which focused solely on victims of crime research issues, and created the Victims of Crime Research Digest in 2008. Since its inception, the Digest has published 12 issues all dedicated to research and policy issues pertaining to victims’ rights.

Although the federal government has taken the lead with respect to education and informational outreach, there are similar efforts being taken by provincial authorities. For example, Alberta released the Alberta Victims of Crime Protocol, which provides a user-friendly outline of what victims can expect from the criminal justice process as well as the rights of both victims and witnesses (Alberta Ministry of Justice and Solicitor General 2013). However, in conducting the research for the 2001 report and for this report, it became apparent that the information available to the public in most provinces with respect to victims’ rights and services is often obscured and not readily accessible in any clear fashion.

In the past two decades it cannot be said with any certainty that there has been a significant shift in legal culture such that professional neutralization is no longer an obstacle to success. However, in the past two decades, there has continued to be gradual and incremental law reform in Canada (as well as in other jurisdictions) to enhance or protect the rights and entitlements of victims. The remainder of this report will look at what advancements have been made over the past two decades with respect to participatory rights, welfare rights and restorative justice.

The Measure of Success

The recital or listing of all the legislative and policy changes in the past two decades does suggest that progress is being made in the vindication of the interests of victims of crime. However, the volume and scope of law reform from the 1980s to 2000 was both greater and more dramatic, yet one of the themes that emerged from the 2001 report is that the extensive effort to integrate the victim had not been entirely successful. The general conclusion reached in the 2001 report was as follows:

The evidence on victim satisfaction with increased participation in the criminal process is not convincing. In addition, there is no evidence to demonstrate that victim participation can lead to a decrease in victim distress (except for the fact that participation through the VIS may lead to increased orders for restitution and restitution is a factor in reducing victim distress). The absence of evidence may suggest one of three possibilities:

  1. victim participation will not lead to victim satisfaction
  2. victim participation has not led to increased satisfaction because the current participatory rights are underutilized, and often merely symbolic in nature; or
  3. current studies are inconclusive and deficient and therefore better studies need to be undertaken.

Regardless of which possibility is the most plausible explanation, there is one proposition established on the state of the current evidence: victims do not feel greater satisfaction when they participate within the current criminal process but they do experience some relief of distress and increased satisfaction when their cases are resolved outside of criminal courts in some cases. At a minimum, for true victim rights advocates, this proposition should lead to greater consideration and study of alternatives to adversarial criminal courts (Young 2001b:62).

For many of the scholars, researchers and state agents who have written in this area, the measure of success for law and policy reform is whether there has been an increase in victim satisfaction and confidence in the system. As satisfaction is an elusive and subjective yardstick by which to measure the effectiveness of reform, most scholars and researchers usually address five questions as a measure of success:

  1. To what extent are rights or services known to the victim?
  2. If known, is the right or service underutilized?
  3. Has a legislative initiative (including its implementation), or service, led to greater victim satisfaction or a decrease in secondary victimization?
  4. If an initiative or service has not led to greater satisfaction, can this shortcoming be attributed to “professional neutralization”?
  5. Is there any evidence to confirm earlier studies which indicated and argued that crime victim satisfaction is more related to process than outcome?

In reviewing the developments regarding participatory and welfare rights in the past two decades, this report will identify any empirical research which addresses these five questions for each particular right or entitlement. Unlike the previous reports, this brief report will not make any prescriptive statements as to what may be needed for future law reform. Rather, the remainder of this report serves the more modest objective of chronicling the continuing growth of victim-related law and policy reform with some preliminary conclusions as to whether such reforms appear to truly address the legitimate needs and concerns of crime victims.