Introduction

Throughout the history of the Canadian Judicial System, many changes have been made for victims and their rights. Prior to 1970, victims of crime were rarely visible to the general public and had a very small role and profile within the system. This is perhaps ironic, since history demonstrates that victims previously had the most active role and responsibility in prosecuting offenders. Since 1970, many improvements have been made in an attempt to give victims a more legitimate and representative role through the judicial processes.

The first official improvement to address victims’ issues was the creation of victim compensation boards in the early 1970’s. The provinces also began to offer services to victims in the form of witness protection programs, referral services, crisis intervention, advocacy programs and victim-offender mediation programs. In the 1980’s, each of the provinces began to implement their own bill of rights for victims, which included the right to give a victim impact statement. In 2015, a federal Victims Bill of Rights came into effect in Canada which outlines provisions for the treatment of victims at the federal level.

Who is a Victim?

Only those persons who fit the description of “victim”, as is defined by their particular province’s legislation, are applicable under a victim’s rights bill. Generally, the term victim applies to a person who suffers emotional or physical harm, or the loss or damage of property or economic well-being, as a result of the commission of a crime by another person. The victim definition also applies to a person who is the child, parent, dependent, or spouse (within the meaning of the Family Law Act) of a person who is killed during the commission of a crime. The definition of victim does not, however, include a child, parent, dependent or spouse of a person who is charged with or convicted of committing a crime.

Victim’s Bill of Rights

The federal, provincial, and territorial ministers responsible for justice first endorsed the Canadian Statement of Basic Principles of Justice for Victims of Crime in 1988 and approved a renewed version in 2003. This statement was stimulated by the 1985 U.N. Declaration on basic Principles for Justice for Victims of Crime, and all of the provincial victim rights bills are based upon it. At the provincial level, the implementation by each of the provinces of a bill of rights for victims is arguably the most important and effective development by the government to address victims’ issues. In 2015, the federal government enacted the Canadian Victims Bill of Rights, the first of its kind at the federal level.

The provincial legislation addresses the victim services such as compensation boards, prosecutors and police services in the province. For example, the Ontario Provincial Police (OPP) is ruled by the Ontario legislation. If a victim feels that their rights have been denied or violated, they can file a complaint with the appropriate agency in their area. For example, OPP complaints are filed with the Office of the Independent Police Review Director.

While all of the bills vary slightly from province to province, the Ontario legislation is fairly representative of them all establishing the following principles for the treatment of victims of crime:

  1. Victims should be treated with courtesy, compassion and respect for their personal dignity and privacy by justice system officials.
  2. Victims should have access to information about,
    1. the services and remedies available to victims of crime,
    2. the provisions of this Act and of the Compensation for Victims of Crime Act that might assist them,
    3. the protection available to victims to prevent unlawful intimidation,
    4. the progress of investigations that relate to the crime,
    5. the charges laid with respect to the crime and, if no charges are laid, the reasons why no charges are laid,
    6. the victim’s role in the prosecution,
    7. court procedures that relate to the prosecution,
    8. the dates and places of all significant proceedings that relate to the prosecution,
    9. the outcome of all significant proceedings, including any proceedings on appeal,
    10. any pre-trial arrangements that are made that relate to a plea that may be entered by the accused at trial,
    11. the interim release and, in the event of conviction, the sentencing of an accused,
    12. any disposition made under section 672.54 or 672.58 of the Criminal Code (Canada) in respect to an accused who is found unfit to stand trial or who is found not criminally responsible on account of mental disorder, and
    13. Their rights under the Criminal Code (Canada) to make representations to the court by way of a victim impact statement.
  3. A victim of a prescribed crime should, if he or she so requests, be notified of
    1. any application for release or any impending release of the convicted person, including release in accordance with a program of temporary absence, on parole or on an unescorted temporary absence pass, and
    2. any escape of the convicted person from custody.
  4. If the person accused of a prescribed crime is found unfit to stand trial or is found not criminally responsible on account of mental disorder, the victim should, if he or she so requests, be notified of,
    1. any hearing held with respect to the accused by the Review Board established or designated for Ontario pursuant to subsection 672.38 (1) of the Criminal Code (Canada),
    2. any order of the Review Board directing the absolute or conditional discharge of the accused, and
    3. any escape of the accused from custody
  5. Victims of sexual assault should, if the victim so requests, be interviewed during the investigation of the crime only by police officers and officials of the same gender as the victim.
  6. A victim’s property that is in the custody of justice system officials should be returned promptly to the victim, where the property is no longer needed for the purposes of the justice system. 1995, c. 6, § 2 (1).

The Canadian Victims Bill of Rights applies to the federal organizations such as the Parole Board of Canada and Correctional Services of Canada. This new bill gives victims the right to information, protection, participation, and seek restitution. The federal Bill includes similar principles to those listed above in the Ontario Victims’ Bill of Right. These rights are applicable during the investigation, prosecution and while the offender is going through the corrections or conditional release process. If a victim feels that their rights have been denied or violated, they can file a complaint with the relevant federal department or agency. For example, a complaint about Correctional Services regarding access to information can be made to the Information Commissioner of Canada.

Compensation and Civil Proceedings

In the Ontario Victim’s Bill of Rights there are also provisions outlining civil proceedings for victims who have suffered emotional distress and/or bodily harm resulting from the commission of the crime. In these provisions, the convicted person is liable for the damages that they have caused and the victim can therefore seek redress from that person. Under this provision, only those who fall into one of the categories below are presumed to have suffered emotional distress:

  1. A victim of an assault if the victim is, or was a spouse, within the meaning of section 29 of the Family Law Act, of the assailant.
  2. A victim of a sexual assault.
  3. A victim of an attempted sexual assault.

There are also other ways in which a victim can seek compensation for the crimes committed against them. There are many victim compensation boards across Canada that provide financial assistance to victims. This type of assistance is usually available through each province’s official victim’s service program. To apply for compensation through these programs, a victim must (generally):

  • Report to police within 1 year (2 years for some provinces), but exceptions are made,
  • File application within 1 year from the date of the crime (2 years for some provinces), but exceptions are made,
  • Be victims of violent or personal crimes, (and/or) be a dependant of a homicide victim,
  • Obtain an application by contacting the program within the province where the crime occurred. The application should be sent directly to the program office. Decisions are generally made between 1 and 5 years after an application is made. Once a decision is made, compensation will be paid to the claimant in approximately 4 weeks.
  • Note: Citizens of foreign countries are eligible to apply for compensation as well.

The maximum award benefits range between $5,000 and $25,000. Compensable costs include: medical expenses, mental health expenses, lost wages for incapacitated or disabled victims, lost support for dependents of victims, funeral expenses, rehabilitation for disabled victims, services to replace work in the home previously performed by the victim. Emergency awards are also available which provide expedited compensation to aged or terminally ill victims. Funding can come from consolidated revenue of the province, surcharge revenue, general tax revenue, or a combination of these.

You can find each provinces resources and compensation policies here: http://www.victimsofviolence.on.ca/victim-information-library/guide-financial-assistance-victims/

In the federal Bill, every victim has the right to have the court consider making a restitution order against the offender, the judge can order restitution for financial losses related to:

  • Damaged or lost property due to the crime;
  • Physical injury or psychological harm due to the crime;
  • Physical injury due to the arrest or attempted arrest of the offender;
  • Costs for temporary housing, food, child care and transportation due to moving out of the offenders’ household (this only applies if the victim has moved because they had been physically harmed or threatened with physical harm due to the offence, arrest or attempted arrest of the offender); and
  • Costs that victims of identity theft had to pay to re-establish their identity, and to correct their credit history or credit rating.
  • Every victim has the right to have the court consider making a restitution order against the offender; if an order is made and the victim is not paid they have the right to have it entered as a civil court judgement.

Child Witnesses

There are also provisions set out for the protection of child witnesses and victims. In some provinces these are included in the victim bill of rights, and in others they are part of separate pieces of legislation, such as the Ontario Evidence Act. These provisions again vary from province to province but generally include:

  • a person of any age is presumed competent to give evidence in court;
  • a child’s evidence does not need to be corroborated and is admissible if the child takes an oath, makes a solid affirmation, promises to tell the truth, or if the judge decides the child’s testimony is reliable;
  • a child’s testimony may be accepted on videotape where:
    • the videotape is recorded at a pre-trial examination of the child with parties, lawyers and the judge present; and
    • the child testifies and agrees with the evidence he/she gave on videotape.
  • a child may testify with the assistance of a one-way screen, closed circuit television, or with the accompaniment of a support person; and
  • the court has discretion to exclude personal cross-examination of a child by an adverse party – for example, where the adverse party is not represented by a lawyer and wishes to conduct the cross-examination of the child by himself/herself.

These provisions are very important for the protection of children who may have been a victim or a witness to a crime, and are meant to safeguard their well-being and protect them from further duress.

Victim and Community Impact Statements

Before a judge issues a sentence to a convicted offender, the victim is given an opportunity to present a victim impact statement. The Criminal Code states in section 722.1 that “the court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.” This means that all victims have a right to express, either in writing or orally to the judge, the harm that the crime caused them and the loss that they have endured; and that the judge is obligated to take into account these statements when considering sentencing options. The statement must be relevant to the specific case and offender and it can not include any unproven or previous allegations. In the current justice system, presenting a victim impact statement is the only active role that a victim plays throughout the proceedings and is therefore one of the most important victims’ rights.

The Canadian Victims Bill of Rights added Community Impact Statements to the sentencing phase of all criminal offences. This type of statement is prepared by a representative of the community to inform the court of the emotional, physical and financial effects on members of the community as a result of the offence. The statement may also describe any fears that community members have for their safety or their family and friends’ safety. The statement must not include any information which is not relevant to the harm or loss suffered by the community. This includes any information about the offender that is irrelevant, unproven allegations and unless the court approves it. The statement may offer no opinion or recommendation about the sentence.

The victim or community may request to present their statement to the court; the following are aids available for victims to help convey their statement by:

  • reading it;
  • reading it in the presence or close proximity of a support worker of the individual’s choice,
  • outside the courtroom or behind a screen or other device that would allow the victim not to see the offender; or
  • presenting it in any other manner the court considers appropriate.

Every victim and community has the right to convey their views about decisions to be made by authorities in the justice system that will affect the victim; the court must take this statement into account when deciding the sentence to give the offender. This includes the initial trial and where the accused’s sentence undergoes judicial review, such as an appeal.

Victim Entitlements Under the Corrections and Conditional Release Act

The CCRA is an act which governs the Correctional Service of Canada. This Act sets out regulations regarding an offender’s treatment while in prison and also regarding parole eligibility. For victims, this act states that they are entitled to certain information about the offender, and also that they are to be allowed to participate in any early release decisions by presenting a victim impact statement. Recently, the Safe Streets and Communities Act has expanded the scope of the rights that victims have, all of which can be found below. This Act also incorporated new components of the purpose of the CCRA, which now include aspects such as taking into consideration the nature and gravity of the offence and the degree of responsibility of the offender when making early release decisions, as well as provisions which enhance the timely exchange of information to victims. The entitlements that victims have under the CCRA include:

  • Section 15.1 (1): this section has to do with the offender’s correctional plan, which includes the level of intervention the offender will need, as well as objectives for the offenders behaviour and their participation in programs. This section also states that the correctional plan should include objectives for meeting court ordered obligations, such as restitution to victims, or child support.
  • Section 26: this section states that the following information will, at the request of the victim, be provide regarding the offender: (i) the offender’s name, (ii) the offence of which the offender was convicted and the court that convicted the offender, (iii) the date of commencement and length of the sentence that the offender is serving, and (iv) eligibility dates and review dates applicable to the offender under this Act in respect of temporary absences or parole. Furthermore, it may also be disclosed to victims, if the interest of the victim in such a disclosure clearly outweighs any invasion of the offender’s privacy, the following information:
  • (i) the offender’s age;
  • (ii) the name and location of the penitentiary in which the sentence is being served,

(ii.1)  and (ii.2) if the offender is transferred, a summary of the reasons for the transfer and the name and location of the penitentiary or institution in which the sentence is being served.
(ii.3) the programs that the offender has taken part in to ensure their successful reintegration into the   community.
(ii.4) the serious disciplinary offences that the offender has committed

  • (iii) the date, if any, on which the offender is to be released on temporary absence, work release, parole or statutory release,
  • (iv) the date of any hearing for the purposes of a review under section 130,
  • (v) any of the conditions attached to the offender’s temporary absence, work release, parole or statutory release,
  • (vi) the destination of the offender on any temporary absence, work release, parole or statutory release, and whether the offender will be in the vicinity of the victim while travelling to that destination and the reasons for any temporary absence, and
  • (vii) whether the offender is in custody and, if not, the reason why the offender is not in custody.
  • It is important to note here, that in order to receive the information discussed above, victims must be registered with the Correctional Service of Canada, or the Parole Board of Canada. Victims can register by completing a Victim Request for Information Form.

Victim Justice Fund

The Victims’ Justice Fund is co-managed by the Policy Center for Victims Issues and the Programs Branch of the Department of Justice. The Victims’ Justice Fund is meant to support a wide range of projects and activities designed to improve the experience of victims in the criminal justice system, including raising awareness about their rights.

There are three components of the Victims Fund that are meant to assist provinces/territories, organizations, and individuals in helping victims through the justice system. These include:

  1. Provincial and Territorial implementation:
    This component of the Victims Fund is designed to encourage implementation of federal and provincial/territorial legislation for victims of crime including Criminal Code provisions, such as victim impact statements, and testimonial aids. It also supports the adherence to the Canadian Statement of Basic Principles of Justice for Victims of Crime.
  2. Projects and Activities Component:
    This component makes funding available, through grants and contributions, to governmental and non-governmental organizations. Projects and activities eligible for funding include those that encourage the development of new approaches, promote access to justice for victims of crime, improve the capacity of victim service providers, foster the establishment of referral networks and/or increase awareness of services available to victims of crime and their families. The Project and Activities component also provides funding to support the organization of National Victims of Crime Awareness Week events.
  3. Financial Assistance Component:
    This component provides financial assistance to victims of crime in specific circumstances in which they require direct, limited, emergency financial assistance in order to 1) alleviate undue financial hardship in exceptional or emergency circumstances in which no other source of financial assistance is available and 2) to provide family members of victims of homicide who incur expenses to attend Criminal Code section 745.6 early parole eligibility hearings with financial assistance.

Office of the Federal Ombudsman for Victims of Crime

An Ombudsman is someone appointed by the government to receive and review complaints made by citizens against government officials, agencies, or departments. An Ombudsman operates at arm’s length from the government to ensure that he or she remains impartial. The office of the Federal Ombudsman for Victims of Crime was created in April of 2007 to ensure that the federal government meets its responsibilities to victims of crime. The mandate of the Federal Ombudsman for Victims of Crime relates exclusively to matters of federal responsibility and includes:

  • facilitating access of victims to existing federal programs and services by providing them with information and referrals; addressing complaints of victims about compliance with the provisions of the Corrections and Conditional Release Act that apply to victims of offenders under federal supervision and providing an independent resource for those victims;
  • enhancing awareness among criminal justice personnel and policy makers of the needs and concerns of victims and the applicable laws that benefit victims of crime, including to promote the principles set out in the Canadian Statement of Basic Principles of Justice for Victims of Crime; and
  • identifying emerging issues and exploring systemic issues that impact negatively on victims of crime.

The Office of the Federal Ombudsman for Victims of Crime also assists victims directly by answering their questions about their rights as a victim, providing information about the services and programs available to them through the federal government, receiving and reviewing complaints about other federal government departments, agencies, employees, laws or policies, referring victims to programs and services in their city or province, making recommendations to the federal government on how to change its policies or laws to better suit the needs and concerns of victims, and reporting on those recommendations publicly. All of these services are provided free of charge. The Ombudsman does not advocate on behalf of individual victims or provide legal advice, and only reviews federal matters that occurred after the Office was created in March 2007.

What Victims Really Want

It is a popular belief that victims want their offenders to receive the maximum penalty possible for their crimes. This is not necessarily true, however, as recent research has indicated that victims rate the treatment they receive and their satisfaction with the justice system and its authorities as more important than the actual outcome (sentence). It has been discovered by many researchers that victims are much more satisfied with the sentence their offender receives (even if it is not what they expected it to be) if throughout the judicial process they were themselves treated with respect and dignity, were informed of the processes and the role they have in it, and if authorities listened to their concerns and treated them fairly (Wemmers, 2010; Erez and Roberts, 2007). Alternatively, when sentences are disproportionate and unfair in comparison to the crime their offender has committed, it does not matter how well victims are treated, they will not be satisfied with the justice system. Options such as community-based sentences for example, are not very well received among some victim populations, especially in cases where the offence involved violence (Probation Officers Association of Ontario, 2006).  Essentially, victims want their rights to be recognized to the same extent that offenders’ rights are recognized.

Conclusion

Since the 1970’s, victims have slowly acquired a body of rights and have seen many improvements to the justice system. With the passing of the Canadian Statement of Basic Principles of Justice for Victims of Crime and the U.N. Declaration on basic Principles for Justice for Victims of Crime, victims in Canada began to be recognized as key players in the justice system that deserve fair treatment and to be informed of the proceedings. Provincial bills of rights for victims took this recognition and inclusion further. While these pieces of legislation have been enacted in the name of victims, and have definitely improved their treatment, victims still often feel forced into the background and left out of the proceedings of their case. The new federal Bill aims to resolve previous concerns of victims and allow for larger representation in the federal system and in the outcome.

In the future, initiatives should perhaps focus on getting government officials, judicial authorities, lawyers, police, and other members of the court system to adhere more closely to the legislation already in place.

Canadian Resources Centre for Victims of Crime. (2015). Financial Assistance. Accessed online on July 20, 2015 at http://crcvc.ca/for-victims/financial-assistance/

Corrections and Conditional Release Act, SC 1992, Chapter 20. Accessed online on July 20, 2015 at http://www.canlii.org/en/ca/laws/stat/sc-1992-c-20/latest/sc-1992-c-20.html

Directory of Crime Compensation Boards. 2005. Accessed online on July 20, 2015 at http://ojp.gov/

Department of Justice. (2015). A Crime Victim’s Guide to the Criminal Justice System. Accessed online on July 20, 2015 at http://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/guide/seco.html

Department of Justice. (2015). Community Impact Statements. Accessed online on July 29, 2015 at http://www.justice.gc.ca/eng/cj-jp/victims-victimes/factsheets-fiches/community-collectivite.html

Department of Justice. (2009). Victims’ Justice Fund. Accessed online on July 20, 2015 at http://www.justice.gc.ca/eng/fund-fina/cj-jp/fund-fond/index.html

Department of Justice. (2001). The Role of the Victim in the Criminal Process: A Literature Review – 1989 to 1999 Accessed online on July 20, 2015 at http://publications.gc.ca/collections/Collection/J3-3-1-2001E.pdf

Erez, Edna and Julian Roberts. (2007). Victim Participation in the Criminal Justice System in Victims of Crime. Sage Publications: Thousand Oaks.

Government of Canada. (2015). Canadian Victims Bill of Rights. Accessed online July 17, 2015 at http://www.canada.ca/en/campaign/victimsbillrights/overview.html

Office of the Federal Ombudsman for Victims of Crime. (n.d.) Accessed on line on July 20, 2015 at http://www.victimsfirst.gc.ca/

Ontario Victim’s Rights Bill. S.0. 1995, Chapter 6. Last amendment: 2006, c. 35, Sched. C, § 128. Found online on August 13th at  http://www.ontario.ca/laws/statute/95v06

Personal Communication. Steve Sullivan: previous Federal Ombudsman for Victims of Crime, and victim advocate. July 27th 2010.

Probation Officers Association of Ontario (2006), Victims in the Criminal Process: Perceptions and Experiences of Criminal Justice Professionals. Toronto: POAO.

Wemmers. Joanne. 2010. The Meaning of Justice for Victims, in the International Handbook of Victimology. CRC Press; Boca Raton. P 27-42.