Department of Justice Canada
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MAKING THE CRIMINAL JUSTICE SYSTEM MORE RESPONSIVE TO VICTIMS


The Law Commission's report emphasizes the unique needs of survivors of institutional child abuse, and recommends measures to make the criminal justice process more responsive to their needs. The Government of Canada shares the Commission's goal of making the criminal justice system more responsive to the needs of victims of institutional child abuse, and victims of crime generally.

Addressing the Needs of Victims of Abuse

Improving the experience of victims of crime in the criminal justice process is a continuing priority for the Government of Canada. As the Law Commission emphasizes, victims and survivors have unique needs characterized by their victimization, their gender, their relationship with the offender and with their community, and their own personal characteristics. Victims are not a homogeneous group, and they do not speak with one voice in identifying needs and approaches. While there are many common strategies that can help victims who participate in the criminal justice system, no template for services and "rights" or national standards will meet all the various needs of victims of crime. A range of approaches and flexibility in justice system responses is required; but all must be grounded in dignity, courtesy and respect.

The Government recognizes that the impact of victimization is life-long and for many victims, life-changing. If the experience of victims in the criminal justice process is to be improved, there must be better understanding of the impact of victimization and of the need to treat victims of crime with courtesy, compassion, dignity, and sensitivity. There must be steady progress in raising awareness and expanding information services and assistance to victims of crime, but it is not fast enough for many. Attitudes about victims' needs are changing among the police, the legal profession (Crown, defence and judge) and other system officials. But attitudes of victims of crime about their needs are changing as well. They will not accept being shut out of key decisions and kept uninformed, but they seek more accountability from, and more participation in, the criminal justice system.

Taking Responsibility

The responsibility for addressing the needs of victims of crime within the criminal justice system is shared by the federal, provincial and territorial governments. The federal government is responsible for enacting the criminal law, which is set out in the Criminal Code and applies throughout Canada. The provincial governments are responsible for the enforcement of the law and the administration of justice in the provinces. In the three territories, the federal Crown prosecutes offences and the Royal Canadian Mounted Police enforce the law. Other aspects of the administration of justice are the responsibility of the territories.

Protections for Victims in the Criminal Justice Process

The federal government has worked with the provinces and territories to make many victim-related reforms to the law in recent years. This section considers existing protections for victims in light of the Law Commission's recommendations, and describes initiatives that are aimed at improving the experiences of victims in the criminal justice process.

Victims currently benefit from a number of protective measures within the criminal justice process. For example, the process of providing testimony has been made easier, victims' safety is considered in bail decisions, and victims are allowed to submit victim impact statements at the time of sentencing. Other measures that consider the victim's needs within the criminal process include providing them with better information about this process, and sensitizing the judiciary about the needs of victims.

Facilitating Participation

A range of Criminal Code provisions make it easier for young victims and witnesses and sexual- assault complainants to testify, and protect or limit their re-victimization in the criminal justice process. For example, the Code gives judges the discretion to

  • exclude members of the public from the courtroom when necessary for the proper administration of justice;
  • allow a victim or witness who is under 18 years of age or may have difficulty communicating the evidence by reason of mental or physical disability to testify outside of the courtroom or behind a screen or device that would prevent him or her from being viewed by the accused;
  • allow the admission of videotaped testimony of a victim or witness who is under the age of eighteen in proceedings related to various types of child abuse and sexual assault; and
  • permit a support person to accompany a witness or victim who has a physical or mental disability or who is under fourteen year of age, and restrict personal cross-examination of young sexual assault victims or victims of violence (under 18 years of age) by a self-represented accused.

As well, when requested, a judge must order a publication ban to protect the identity of all victims and witnesses of sexual offences who are less than eighteen years old, and may order a ban in other appropriate cases.

The Law Commission recommends extending the scope of some of these existing provisions to a broader range of victims who may require protection to provide their testimony. Justice Canada will monitor the application of these provisions to ensure that they maintain their objectives, and will consider the need for additional reforms in this area.

Many suggestions have been made for changes to the provisions of the Code that permit a support person to accompany a victim or witness who has a disability or who is under the age of fourteen years. This provision is currently under review as part of the Department of Justice's consultations on Child Victims and the Criminal Justice System. A consultation paper was released in the fall of 1999 and is available on the Department's website at www.canada.justice.gc.ca/eng. The suggestions from these consultations will be analyzed and options for improvements will be developed, likely resulting in legislative reform measures.

Making Victims' Safety a Primary Consideration in Bail Decisions

Recent amendments (December 1999) to the Criminal Code require the decision-maker, at various points in the criminal justice process, to ensure the safety and security of any victim of or witness to the offence. For example,

  • the responsible judicial officer (officer-in-charge, justice of the peace or judge) will consider the safety and security of the victim in any decision about an accused's bail;
  • where an accused is released pending trial, the judge will consider including as a condition to bail that the accused abstain from any direct or indirect communication with the victim and any other condition necessary to ensure the safety and security of the victim; and
  • the particular concerns of the victim will be considered and highlighted in decisions on the imposition of special bail conditions, including firearms prohibitions and in criminal harassment offences.

Victims and Sentencing

One of the purposes of sentencing is to acknowledge the harm suffered by victims of crime. A number of provisions of the Criminal Code support this purpose.

Victim Impact Statements:

While courts may consider evidence regarding the impact of sexual or other abuse for victims and society generally, a victim impact statement informs a court of the harm done to or loss suffered by the victim of a particular offence. The Criminal Code requires a court to consider a victim impact statement at the time of sentencing an offender.

A victim impact statement may be submitted by a person who fits the Criminal Code's definition: a person who has suffered physical or emotional loss as a result of the commission of the offence. Where a victim is incapable of making a statement (e.g. because of illness or injury) the spouse, relative or person responsible for the care of the direct victim, can prepare one. The Code also recognizes that there may be more than one victim; for example, a child who suffers sexual abuse is a victim, but the mother who suffers emotional loss as a result of the crime may be a victim as well.

Several recent Criminal Code reforms encourage victim participation by ensuring that victims are permitted to read their impact statement aloud at the time of sentencing if they so wish; requiring the judge to ask, before imposing sentence, whether the victim has been informed of the opportunity to prepare a victim impact statement; and authorizing adjournments to permit a victim to prepare a statement or to submit other evidence to the court about the impact of the crime. It should be noted as well that a victim can be cross-examined on his or her statement but judges have the authority to limit cross-examination.

A restorative approach to sentencing:

The Government of Canada agrees with the Law Commission's recommendation that the sentencing process should be restorative and inclusive of the victim wherever possible. In this manner, the sentencing process can focus on addressing the harm done by the offender's behaviour to the victim and the community, rather than focusing solely on punishment.

As part of the comprehensive sentencing reforms, that came into force in September 1996 under Bill C-41, the Criminal Code contains a statement of the purpose and principles of sentencing. In addition to codifying long-established objectives of sentencing, such as denunciation (the community's condemnation of the criminal behaviour), deterrence (prevention of repetitive criminal behaviour) and rehabilitation (reintegration of the offender into society), the Code has added two restorative objectives: to provide reparations for harm done to victims or to the community, and to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

When interpreting these new provisions in the Gladue decision, the Supreme Court of Canada referred to Bill C-41 as a "watershed marking the most significant reform to the law of sentencing in Canada's history". The court strongly endorsed the use of restorative approaches for all offenders, and particularly for Aboriginal offenders. The Court also showed considerable interest in sentencing circles, which are an important means of involving members of affected communities in sentencing hearings.

Healing circles, another restorative approach to doing justice, are particularly relevant in responding to institutional abuse. Under this approach, the community can support victims and offenders in their healing and reintegration into society. Healing circles can also provide restoration and closure to communities suffering the effects of historical abuse.

Restitution:

The Criminal Code allows a court to order restitution to cover financial damages that can be readily ascertained, including those resulting from bodily injury (not pain and suffering). While limited in scope, restitution may have restorative effects when it is actually ordered and paid.

Victim Surcharge:

A victim surcharge is an additional penalty imposed on offenders at the time of sentencing. It is collected by the provincial and territorial governments, and used to help fund programs, services and assistance to victims of crime within their jurisdiction. The surcharge is 15% of any fine imposed on the offender; if no fine is imposed, the surcharge is $50 in the case of an offence punishable by summary conviction and $100 in the case of an offence punishable by indictment. The surcharge may be increased, at the discretion of the judge, in appropriate circumstances or waived where the offender establishes undue hardship.

Protections for Victims of Sexual Assault

The Law Commission's report considers the impact of sexual abuse and the justice system's potential re-victimization of sexual offence complainants. Over the years, several reforms to the Criminal Code have been made to address the particular problems experienced by victims and survivors of sexual assault.

In 1983, fundamental changes were made to the Criminal Code provisions dealing with rape and indecent assault. These reforms addressed substantive, procedural and evidentiary aspects of the law. The offences of rape, attempted rape, sexual intercourse with the feeble minded, and indecent assault were repealed and replaced with three levels of gender-neutral sexual assault. The 1983 reforms also abolished outdated rules of evidence for sexual offences. The requirement that rape must be reported immediately was removed as was that for corroboration.

As well, restrictions were placed on the admission of evidence of the complainant's sexual history and reputation. The Commission maintains that the Criminal Code should be amended so that the protections made available to sexual offence victims by the 1983 reforms including subsequent evidentiary and procedural reforms are also available to victims of offences that occurred prior to 1983.

The Commission's concern is based on the assumption that sexual offences committed before 1983 would be charged in accordance with the law that existed at that time.

In fact, current evidentiary provisions could apply to cases of historic abuse. Several Code provisions facilitating a victim's or witness's participation and protecting his or her privacy are applicable to cases of historical abuse. As well, the common law has evolved to address the inapplicability of antiquated gender-based myths and stereotypes in the law. In view of these developments, increasing the awareness among legal professionals about the current state of the common law would be most helpful. Crown attorneys might also consider appealing decisions that were based on a misinterpretation of the common law, where feasible.

Meeting Victims' Needs for Information

The Government of Canada agrees with the Law Commission that victims of institutional abuse, and victims generally, need to be fully informed from the outset about the workings of the criminal justice process as well as their role in it. Justice Canada seeks to meet these needs through its Public Legal Education and Information (PLEI) program.

The PLEI program aims to help Canadians to better understand and participate in the criminal justice system. It is particularly oriented towards the needs of those who are at a disadvantage in accessing the justice system, namely, women, Aboriginal persons, youths, seniors, members of visible minorities, persons with disabilities, and people with low incomes. The PLEI program funds organizations in all provinces, which respond to the specific needs of clients, including victims, in their jurisdiction through community partnerships and tailored approaches.

Educating the Judiciary About the Needs of Victims

Recognizing that the needs of victims within the criminal justice system require greater consideration, the National Judicial Institute (NJI) has undertaken education initiatives for the judiciary that deal with a variety of issues relevant to victims. The NJI's programs in this area help ensure that judges understand and take into account the needs of survivors of child abuse and the impact that the judicial process can have on them.

The NJI was established in 1988 in recognition of the need for a high calibre of continuing judicial education to ensure that our judiciary is of the highest possible quality. Education initiatives relevant to the needs of victims within the criminal justice system form an integral part of the NJI's curriculum. For example, since its inception, the NJI has strongly emphasized sensitization programs, in such areas as violence against women and children. This type of sensitivity training was expanded in 1997 when the NJI launched a three-year Social Context Education project. The program includes judicial education designed to improve the capacity of the judiciary to deal in an appropriately sensitive manner with issues such as violence against children that may arise in matters before the courts.

The NJI is now working on Phase 2 of the Social Context Education Project, which will focus on integration of social context issues into all the Institute's programs.

Current Initiatives

The Government of Canada has undertaken a number of initiatives that improve the protections that are already available to victims. These include legislative measures introduced in the House of Commons in March 2001, consultations on possible future legislative reforms, and the establishment of a federal Policy Centre for Victims Issues.

Strengthening Protections for Victims and Witnesses

The protection of victims and witnesses during criminal trials and the prevention, where possible, of repetitive examinations and abusive cross-examination have been express goals in all three phases of the Department of Justice's Criminal Procedure Reform Initiative. In the current third phase of this reform, the Government of Canada has recently introduced legislation to help address the issue of re-victimization by the justice system.

The new legislation will help protect witnesses from repetitive examinations and abusive cross-examinations at preliminary inquiries. For example,

  • the Criminal Code will now require the justice presiding at the preliminary inquiry to prevent inappropriate questioning of witnesses;
  • a new pre-preliminary hearing will be created for the judge and the parties to attempt to determine and limit the scope of the inquiry, on a consensual basis; and
  • changes will be made to the rules of evidence applicable at the preliminary inquiry to allow the admission of evidence the justice considers credible or trustworthy.

Preventing the Sexual Exploitation of Children

As technology becomes increasingly sophisticated, our laws must respond more effectively to protect children from sexual exploitation by way of computer systems including the Internet. For this reason, the Government of Canada introduced Bill C-15, the Criminal Law Amendment Act, in March 2001 creating the new offence of Internet luring.

Research shows that predators are using the Internet, masking their identity and pretending to be children or young adults to lure children into a situation where they could be sexually abused. The new luring offence will, for example, make it illegal to communicate with a child for the purpose of committing a sexual offence against that child. It will carry a maximum penalty of five years imprisonment.

While the proposed legislation is an important step to better protect children, it is not the only answer to this growing problem. Parents, teachers and Internet service providers also have an important role in being vigilant so that children remain protected from dangers on the Internet. In this regard, the Government announced on February 15, 2001 the launch of the Canadian Strategy to Promote Safe, Wise and Responsible Internet Use, a new initiative that will equip teachers and parents with tools and resources to help protect children against the dangers of illegal and offensive Internet content.

Policy Centre for Victim Issues

In 1999, the Policy Centre for Victim Issues was established in the Department of Justice to coordinate all federal policy and legislation relating to victims of crime and to ensure that the victim's perspective is considered in the development of policy and legislation. Since its creation, the Policy Centre has developed basic information for victims, which is accessible on the Department of Justice Website. The Policy Centre will work in partnership with survivors of institutional abuse to determine the nature of information necessary and the appropriate delivery mechanisms.

Enhancing the Canadian Statement of Basic Principles of Justice for Victims of Crime

The Canadian Statement of Basic Principles of Justice for Victims of Crime, endorsed by federal, provincial and territorial Ministers of Justice in 1988, has been an important guide to the development of legislation and policies affecting victims of crime. Through legislation, policy and practice, the Statement has been implemented across Canada. Provinces and territories have enacted legislation to provide services, assistance, and, in some jurisdictions, compensation to victims. Provinces and territories have also implemented training programs for victim service providers and other professionals, and regularly share information about victims services and assistance. In addition, many jurisdictions have legislation that includes a statement of principles, goals or a preamble which reflect the principles of the Canadian Statement.

The federal government has supported efforts to implement the Statement. The federal Victims Fund provides contribution funding to all provinces and territories to help them implement victim-related legislation and the Canadian Statement.

The Government of Canada, together with provinces and territories, is currently reviewing the Canadian Statement to determine whether and how it should be revised and enhanced.

Corrections and Conditional Release Process

The Government of Canada has committed to an enhanced role for victims in the corrections and conditional release process. In May 2000, following a review of the Corrections and Conditional Release Act, the sub-committee of the Standing Committee on Justice and Human Rights made a number of recommendations on victims' rights. Action will be taken on all of these recommendations to provide additional and more timely information to victims as well as allowing victims to play a larger role in the process if they so desire. As a first step, the Government is undertaking consultations with victims of federal offenders to gain more input as to what is needed to make the corrections and conditional release process more responsive to victims' needs.

Consultations on Better Protection for Child Victims

Several recent high-profile cases have involved death and serious injury to children, and the media have focussed on the threat posed by sexual predators. This has resulted in a high degree of public concern that more effective measures have to be taken to ensure the safety of children in their communities.

In response to this concern, the Minister of Justice launched a public consultation on Child Victims and the Criminal Justice System in the fall of 1999. The consultation paper outlines a range of protective measures enacted by the Government since 1981 to better protect children from harm, and outlines suggestions on how the criminal law could be improved to better support provincial and territorial efforts to protect children. Although not specifically directed to institutional child abuse, the consultation examines some forty issues in three areas - creating further child-specific criminal offences, sentencing to protect children, and improving the experience of child witnesses and facilitating their testimony in criminal proceedings. The suggestions from the consultation will be analyzed, and options developed for improvements in the areas of concern raised, likely resulting in a package of legislative reforms.