Part III: Welfare Rights

The victims’ rights movement had its initial successes in compelling governments to address the financial, material and health needs of victims through compensation, counseling and other services. The first significant victim-related law reform measures taken in the Western World related to state compensation for injuries suffered by crime victims. In 1964, New Zealand enacted the first victim compensation program in the common law world and all Canadian provinces followed this lead, starting with Saskatchewan in 1967 and ending with Prince Edward Island in 1988.

Welfare rights clearly emerged as the initial focus of the victims’ rights movement, and compensation was just one component of provincial initiatives relating to victim assistance, as provinces expanded programs and other services to address the needs of the victim outside of the court. It must be recognized that, despite the recent problems confronting compensation programs, and the perpetual problem of underfunding of other programs, the wide array of specialized assistance programs offered by the provinces is one of the crowning achievements of the victims’ rights movement.

In the past and current literature, one finds far more attention being paid to the participatory rights of victims compared to their welfare rights. This report is no different. The focus on legal and participatory rights should not lead to an inference that victims prioritize these rights over rights relating to their financial, physical and mental welfare. Rather, less attention is paid to welfare rights because they are less controversial in terms of theory and practice, and effectively addressing welfare rights is largely an exercise in fiscal management and political will. Welfare rights ebb and flow depending on the funds a government is willing to invest in these programs – this is a political issue clearly beyond the scope of this report and outside of the interest and focus of many researchers and academics.

In addition, although welfare rights are clearly an indispensable component of victims’ rights, these types of rights have not been the subject matter of proposed constitutional amendments in the United States. Further, welfare rights would not fit within the constitutional law jurisprudence in Canada, as our constitutional regime has never recognized economic rights and has rarely enshrined “positive” rights that impose fiscal obligations on state agents (Gosselin v. Quebec (Attorney General) 2002; see also Weidenfeld v. Alberta 2020; R. v. A.(S.) 2014; Vail v. Prince Edward Island (Workers’ Compensation Board) 2012). As such, when scholars look at the Constitution as a potential forum for enhancing the role of the victim, the focus is logically placed on participatory rights, which would allow the victim to play a more active role in the criminal process. The discussion of welfare rights is largely left to political actors and bureaucrats, and the nature and scope of these rights often change from decade to decade depending upon the political landscape of the decade.

Restitution

For many decades, restitution being paid directly by the offender has been available as an option upon sentencing. In the 2001 report, it was noted that restitution as a sentencing option has been largely ineffective as the regime is “complex and underused and available only in cases of ascertainable damages” (Roach 1999:298). This negative assessment is unfortunate because, as noted in the 2001 report, “the absence of restitution remains a contributor to victim dissatisfaction” (Young 2001:23).

Since 2001, there have been numerous amendments to strengthen and expand the scope of the restitution provisions in the Criminal Code. In this regard, the following 2018 statement from the New Brunswick Court of Appeal provides a good outline of the significant changes:

In any event, recent legislative changes make inapplicable any restraint and caution courts may have believed they needed to exercise when considering a restitution order. Since 2015, there has been a clear legislative message requiring courts to consider restitution orders during sentencing process. That year, Parliament adopted the Victims Bill of Rights Act, S.C. 2015, c. 13, which added a number of provisions to the Criminal Code. Among these is s. 737.1, which:

  1. requires a sentencing judge to "consider making a restitution order" in addition to any other measure imposed on the offender;
  2. obliges the judge to make enquiries to determine if steps have been taken to provide victims with an opportunity to seek restitution; and
  3. requires the judge to give reasons if restitution is sought but not ordered. The 2015 amendments also added s. 739.1, which states that an "offender's financial means or ability to pay does not prevent the court from making an order" of restitution, and s. 739.2, which provides that, in making a restitution order, "the court shall require the offender to pay the full amount specified in the order by the day specified in the order, unless the court is of the opinion that the amount should be paid in instalments, in which case the court shall set out a periodic payment scheme in the order. (Moulton v. R. 2018:31)

In recent years, there have been a number of provincial programs developed to assist victims in collecting restitution ordered by a court. In 2009, the Restitution Civil Enforcement Program was introduced in Saskatchewan and it was the first program of its kind in Canada (McDonald 2020). Since then, similar programs have been introduced in Alberta (2020); British Columbia (2015); Nova Scotia (2008); and Prince Edward Island (2016).

An early study (2010) of the Saskatchewan program had mixed results. Few victims applied for a variety of reasons including:

  1. lack of public awareness of the program;
  2. victims with older orders could not be contacted due to outdated information; and
  3. some did not see the benefit of applying (R.A. Malatest & Associates Ltd. 2010). Further, enforcement and securing payments from offenders was challenging, as evidenced by the fact that only three of the 56 orders were paid in full. The study also noted that 26 of the 56 orders were not paid either because of the offender’s inability to pay, the offender was in custody or could not be located, or the offender lived on First Nations territory (ibid). A more recent study, however, found that the majority of orders under the program (74%) were respected, which allowed the program to distribute $1.2 million to victims (Hala 2015).

As with victim fine surcharges and victim service programs, there is little Canadian academic literature or empirical research on the topic of restitution (McDonald 2009; 2020). However, the available research echoes similar themes to other areas with respect to the victim’s lack of knowledge and utilization of this entitlement. For example, in 2011 it was found that 45% of study participants (not all of whom were victims) had no knowledge about the availability of restitution or compensation for victims (McDonald & Scrim 2011). In 2013, the Criminal Justice Professionals Survey also showed that familiarity with restitution varied between professions (47% of police, 76% of Crowns, 55% of victim service workers) (McDonald 2015).

As expected, restitution is most commonly ordered for property offences (around 80% of the time) (Maxwell 2017; McDonald 2010), but its usage is infrequent (Wemmers 2017; McDonald 2015; Ombudsman 2017c). In particular, there has been a gradual decline of restitution orders between 1997 (7.06% of cases), 2012 (4.09% of cases) and 2017 (2.3% of cases) (McDonald 2015; Maxwell 2017). It comes as no surprise then that Prairie Research Associates (2004) found that few (15%) victims had restitution ordered in their respective cases.

Unlike participatory rights, it appears that victim satisfaction with restitution may be more related to the outcome than to the fairness of the process. In a 2010 study, it was stated that “one striking finding from the interviews and questionnaires was that with few exceptions, victims focused on the final result, that is, whether or not the received the full payment in the end. This focus was evident regardless of any help they received along the way, or whether they were positive about the process itself” (McDonald, Northcott & Loubier 2010:56). In the United States, it has also been found that a successful result being reached in terms of restitution is positively correlated with victims’ desire to report victimization in the future (Ruback, Cares & Hoskins 2008).

Despite victim satisfaction upon success, it has been noted that there remains problems with enforcing these orders due to the time and cost required, as well as the complexity of the process (Prairie Research Associates 2004; R.A. Malatest & Associates Ltd. 2010; Martell Consulting Services 2002; Wemmers 2017). A 2004 study, for example, showed that one-half of prosecutors, two-thirds of probation officers and one-third of defence counsel said enforcement was difficult (Prairie Research Associates 2004). Of course, another significant obstacle remains the accused’s inability to pay (Prairie Research Associates 2004, R.A. Malatest & Associates Ltd. 2010). This obstacle was noted in a 2010 study, which found that many victims received no payment at all (31%) or only a partial payment (16%) (McDonald, Northcott & Loubier 2010). It has always been known that the low socio-economic level of most offenders renders restitution within the criminal process a pipe dream, and out of this realization spawned the need for programs to compensate victims from the funds of the state.

Compensation

In 1992, the Federal Government terminated its cost-sharing agreement with the provinces and federal participation in provincial compensation schemes came to an end. The federal-provincial cost-sharing agreements also contained a number of non-financial conditions designed to ensure a certain degree of uniformity in provincial compensation programs. Since that time, many provinces have changed the infrastructure for the administration of their compensation schemes while others have simply repealed their programs. It still remains unclear the extent to which the scope and coverage of the remaining provincial programs have been reduced as a result of the termination of federal involvement.

The general theme of the changes across Canada since 1992 has been the movement away from formalized applications to compensation boards towards an informal application process lodged within newly-established victim service agencies. There was also a movement away from quasi-judicial hearings. Originally, hearings were mandatory in every province except P.E.I. where hearings were only available upon request. With this change in the process came a change in legislative form with a movement of provisions out of the governing statute into regulations and orders.

In 2001, a report entitled “Criminal Injuries Compensation in Canada: A Status Report (2001)” was prepared for the Department of Justice (Young 2001a). The report concluded that:

 …the evolution of current compensation programs demonstrates a trend towards narrowing the scope of recovery and moving the application process into an informal administrative regime…fee schedules, and denials for recovery for intangible non-pecuniary loss, appear to be the wave of the future and only time will tell whether these changes will serve to reduce the effectiveness of compensatory awards…With the significant changes in Canadian programs in the past decade, it has become necessary to suspend one’s judgment regarding the success of the programs in the absence of a large-scale research project… Raw numbers indicate a sense of growth (but not in all provinces in recent years) but an assessment of compensation programs has to take into account the victims' interest in process values and their non-material needs. Compensation programs may be in a fine state of health but no one really seems to know. (Young 2001a: 3, 61 & 66)

Since that time, there has been a paucity of research and scholarship with respect to compensation programs in Canada, and many of the trends identified in 2001 continue today. A snapshot of the changes since 2001 demonstrates narrowing and informalization across most programs:

Some provinces have expanded the scope of their compensation schemes in the past few decades. For example, in Manitoba, witnesses to a criminal offence are now entitled to compensation for reasonably incurred expenses as well as counselling services. In Quebec, a “close relation” of the victim can also now receive funds for counselling if it would be beneficial to the victim’s rehabilitation. In addition, the program in Quebec now covers the cost of crime scene clean-up as well as termination of a residential lease/rental costs in some circumstances. Given the broad array of expenses that Quebec’s statute covers, it has been noted as the most generous of its kind in North America (Langevin 2010).

In contrast, Ontario has had arguably the most significant change of all the provinces with the dissolution of the Criminal Injuries Compensation Board in October of 2019. A pre-existing Victim Quick Response Program (funded by MAG) has taken over responsibility for compensation, and the process is now governed by an internal policy. Currently, this policy only covers expenses relating to the immediate aftermath of the crime, such as expenses associated with home repairs, basic necessities, short-term counselling, funeral expenses and crime scene clean-up. In addition, the funds are never paid to the victim – instead, a local victim service agency facilitates whatever the victim needs and pays the service provider directly.

In the 2001 compensation report, it was noted that “compensation programs may be in a fine state of health but no one really seems to know” (Young 2001a:66). This comment applies with equal force today. However, there have been two assessments in the past two decades which suggest a poor state of health. In 2007, the Ombudsman of Ontario concluded with respect to Ontario’s Criminal Injuries Compensation Board that “successive governments have stood frozen at the crossroads, afraid to move – unwilling to give the Board the funding it needs to help rather than hurt, yet unprepared to absorb the political fallout that would surely result from abolishing or maiming a criminal compensation scheme that looks so fine on paper…” (Marin 2007:5).

The second negative assessment comes from victims of crime, but it does not emerge from a research study. Rather, in the past decade, the provinces of Alberta and Saskatchewan have been the subject of attack by class action lawsuits relating to the failure to notify child abuse victims of their rights to compensation and the failure of provincial agencies to pursue compensation claims on behalf of these children (L.(T.) v. Alberta (Director of Child Welfare) 2015; Pederson v. Saskatchewan 2016). At least one of these lawsuits was ultimately settled, but the fact that they were initiated in the first place underscores the conclusion of the Ombudsman of Ontario that victims seeking compensation are often greeted with “bureaucratic indifference and suspicion” (Marin 2007:1).

Victim Services and the Victim Fine Surcharge

From a modest start as victim/witness assistance programs in the 1980s, the scope and type of services available to victims has expanded greatly but with significant regional variation. Services evolve over time as provinces explore innovative options. For example, the Victim Rights Support Service in Manitoba now helps victims register for their rights under the provincial Bill of Rights as well as provides them with information about the overall process and when/how they may exercise their rights. Meanwhile, British Columbia’s Victim Travel Fund provides up to $3,000 for families or victims to attend justice-related proceedings in the province.

From 2000 until 2012, an annual Victim Services Survey was published. In these reports, we can find a wide array of empirical data from which some general trends can be discerned, and the most recent data shows that:

There are many programs and many organizations involved in implementing victim service programs. In 2011/12 there were 923 victim service providers providing services to 460,000 victims (Allen 2014). In 2009, the Policy Centre for Victim Issues published a Victim Services Directory to connect victims with services in their local jurisdictions, and it lists more than 350 organizations across the country that provide victim services. Currently, the Department of Justice and the Canadian Centre for Justice and Community Safety Statistics (CCJCSS) are in the process of developing a set of universal indicators or standards that victim services across the country should adhere to, which would then be reported on annually. However, due to differences in counting caseloads and varying definitions of “victim,” there remains some challenges for the completion of this project (McDonald 2020).

As with participatory rights, it appears that there still remains a lack of knowledge of existing victim services. In 2006, it was concluded that “victims often do not know their rights and are unfamiliar with the complicated maze of services available to them. Information is vital because it will often determine the victim’s choices: if you are unaware of a service you cannot use it” (Wemmers & Cyr 2006a:69). This study also found that 64% of victims were not asked by the police whether they wanted information about victim support. Similarly, McDonald and Scrim (2011) reported that 42% of respondents (not all of whom were victims) had no knowledge of victim services at all, while Prairie Research Associates (2004) found that both victims and victim service providers generally noted that there is a lack of awareness of victim services. American studies have shown the same lack of knowledge and information about victim service programs (Sims, Yost & Abbott 2005; Newmark 2006); however, victims in the U.K. have been found to have considerable knowledge about their victim services (Freeman 2013; Bryce et al. 2016).

With a lack of knowledge, one would also expect to see low utilization of victim services. In Canada, studies have shown that between 20% to 25% of victims use available services (Gomes et al. 2002; Prairie Research Associates 2004; McDonald & Scrim 2011), and in the United States the utilization rate is even lower, ranging from 3% to 10% in various studies (Sims, Yost & Abbott 2005; Zaykowski 2014). Even in the U.K., where victims have reported a higher rate of knowledge, the utilization rate is low (20%) (Lowe et al. 2015).

Though the reasons why victims do not utilize such services vary, there are three common reasons noted in the research to date. First, some victims feel they don’t need assistance (Sims, Yost & Abbott 2005; Bryce et al. 2016; McDonald & Scrim 2011). Second, some victims feel that “natural” or “informal” supports are more useful or satisfactory (Sims, Yost & Abbott 2005; McDonald & Scrim 2011). Third, as noted above, some victims simply do not have enough information about victim services (Sims, Yost & Abbott 2005). Regardless of why victims choose not to take advantage of the services available to them, the low utilization rates are regrettable in light of the empirical data in Canada (Hollett and Sons Inc. 2003; Alberta Ministry of Justice and Solicitor General 2019; Bradford 2005; Roberts & Roach 2004), the United States (Newmark 2006) and the United Kingdom (Bryce et al. 2016; Freeman 2013) showing high levels of satisfaction from using these services.

As mentioned at the outset, the strength and success of welfare rights is dependent upon the willingness of political actors to fund these services, and as one might expect, there remains an ongoing problem of insufficient funding in Canada (Hollett and Sons Inc. 2003; British Columbia Ministry of Justice 2014), and in the United States (Sims, Yost & Abbott 2005; Kulkarni, Bell & Rhode 2012). In 1989, the federal victim surcharge was introduced as a sentencing option. This was followed by the enactment of similar provincial surcharges across Canada. These programs were designed to collect revenue for provincial victim service programs. In 2001, it was noted that the surcharge was not an effective mechanism to address the underfunding of provincial programs because the surcharge was rarely being applied (Young 2001b).

In 2013, the Criminal Code was amended to eliminate the ability of judges to waive the surcharge. At that time, the victim surcharge was also increased to 30% of any fine imposed (up from 15%); $100.00 for summary convictions (up from $50.00); and $200.00 for indictable offences (up from $100.00). The policy of addressing the under-utilization of the surcharge by making its imposition mandatory was short-lived, as in 2018 the Supreme Court of Canada ruled that the mandatory imposition of this surcharge violated the Charter of Rights because it forced judges “to impose a one-size-fits-all punishment which [did] not take into account the individual's ability to pay” (R. v. Boudreault 2018:110).

In 2019, the discretionary surcharge was re-introduced, in which imposition could be waived if the court was satisfied that the surcharge would cause the offender undue hardship or would otherwise be disproportionate to the gravity of the offence or the degree of responsibility of the offender. With the re-introduction of discretion, it is instructive to note that there were a number of studies conducted prior to making the discharge mandatory in 2013, which showed that courts often waive imposition of the surcharge with little input or opposition from defence and prosecutor and that the waiver is done routinely without consideration of the relevant factors in support of the waiver (McDonald, Northcott & Raguparan 2014; Ha 2012; Law & Sullivan 2006; Prairie Research Associates 2004). Only time will tell, but it seems unlikely that the fine surcharge will be the solution to the underfunding of provincial service programs designed to protect the welfare rights of crime victims.